 Good morning and welcome to the seventh meeting of the Education and Skills Committee in 2019. Can I remind everyone to please turn mobile phones to silence during the duration of the meeting? We have received apologies today from Tavish Scott MSP. Agend item 1 is a decision on whether to take agenda item 3 in private today and also decide whether or not to take consideration of evidence and additional support needs in private at the next meeting. Can I have approval for that? Thank you very much. The next item of business is item 2. It is our first evidence session in the follow-up review of the recommendations from the committee's 2017 report, Additional Support Needs. Before we begin the formal evidence on this issue, I would like to take an opportunity to thank the parents, the young people and other attendees who came to the informal focus group meeting last Wednesday evening. The experiences shared were very informative and often very moving. Thanks to the many attendees for taking time to share their perspective with us. We are starting by hearing from a partner of witnesses, including those involved in the tribunal system, Children's Commissioner's Office and Inclusion Research. Can I welcome to the meeting Mae Dunsbyr, President Health Education Chamber, First Year Tribunal Scotland? Nic Hobbs, Head of Advice and Investigations, Children and Young People's Commissioner Scotland, and Professor Sheila Riddle, Director for the Centre of Research and Education, Inclusion and Diversity from the University of Edinburgh. If you could please indicate if you would like to contribute to the questions to myself and the clerks, I will try to ensure that you get in on all points. I open by asking to give a brief outline of what your work is in this area, but also anything of significance since we produced our report in 2017. Can I go to Ms Dunsbyr first? Yes. The additional support needs tribunal was created some years ago and has been in operation now for around 14 years. In that time there have been a number of legislative changes, two of the most significant being the introduction into the legislation of the definition of a look to after child. In 2010, those provisions were commenced and looked after children were automatically considered to have additional support needs. The expectation at that time was that that would open the floodgates and we would see a rather overwhelming number of looked after children coming to the tribunal, which has not been the case. The other legislative matter of significance is the alteration to the law by the Education Scotland Act 2016, which for the first time extends rights to children aged 12 to 15 years to make a reference to the tribunal, where they have the capacity to do that and where their wellbeing would not be adversely affected by doing so. That has been heralded as the greatest extension of rights to children across Europe. Since that legislation came into force in January last year, we have received two references raised by children in connection with CSP claims, raised by their own hand and in their own right. In conclusion, I would say that the additional support needs tribunal is a specialist jurisdiction well geared up to attend to the particular needs that come before it, but it is a low volume jurisdiction despite the increasing number of children in Scotland who are considered to have additional support needs. We are doing research funded by the Economic and Social Research Council, which is looking at the extension of rights to children in England and Scotland. The rights go a lot further in Scotland than in England, but overall we are tending to find that local authorities in Scotland have not done a very great deal. The Scottish Government has funded my rights, my say service providers who are providing child advocacy, information and advice and legal support, and they appear to be doing a good job in helping children and young people. In local authorities, there is a general lack of attention, I think, to parents and children's rights. An important indicator of this is the declining use of statutory support plans in Scotland, which is extremely worrying and is continuing. The little table, figure one, I put into my little submission, actually makes clear that many of the new rights depend on having a statutory support plan. So saying that you're extending children's rights while actually winding down the plan that actually guarantees those rights is really nonsensical. At the moment in Scotland, we have more and more children up to 35% in some local authorities being identified as having additional support needs, but at the same time the proportion of the total school population that has a CSP is now less than 0.3%. So unless parents and children have this statutory support plan, they have no means of challenging local authority provision and also making use of the tribunal in many cases. There are other routes, but for children in particular the CSP is extremely important because obviously they can't make placing requests. So I think that parents and children are being misinformed by local authorities and schools at the moment. They're being told very routinely that CSPs have no value, do not provide any access to services and a proliferation of fairly meaningless plans are being used instead. And people are just not being told that these have absolutely no legal status whatsoever. I think it's a mistake that the Scottish Government has launched two legal and planning processes side by side. So everybody in schools think that all the focus is on GoFEC and a child's plan associated with that, but that is actually not an education document. It doesn't provide any rights and it cannot be challenged in law. So there is a great deal of confusion, I would say, at the moment, and this isn't working to actually support rights. I think that for rights to be effective they have to be simple, clear and geared towards the user, the service user, and this isn't the case at the moment. So that's the essence of what I want to say. Thank you. Mr Hobbs. Good morning. As the committee will be aware, the role of the Children's Commissioner's Office is to promote and safeguard the human rights of children in Scotland. From that point of view, our interest in ASN issues starts at that broadest level. ASN has been consistently, since the foundation of the office, one of the most frequent subjects on which children, young people and families contact us through our advice function. Last year it accounted for more than 10 per cent of the calls and contacts into our advice line, so it's something that we're interested in at that broadest level. More specifically, it may refer to the Education Acts. Our office expressed significant concerns about the human rights compliance of that legislation at the time it was going through parliaments. We retain all of those concerns. If anything, having seen the guidance and the code of practice that's associated with the legislation, those concerns have magnified. I think that that act is in breach, so at least three international human rights treaties are significantly concerned about that. I would echo Sheila's concerns about CSPs and about the practical ability of children and young people to access and to exercise their rights and to access the tribunal. Last year, for the first time, we exercised our formal powers of investigation to look into restraints and seclusion in schools. The findings and recommendations of that report are something that we're very interested in talking to the committee about. I'm going to open to questions from committee members. I'll move to Mr Gray. I want to ask a question about CSPs, largely based on the evidence provided by Professor Riddle. You've answered quite a lot of what I was going to ask in your introductory remarks, which I think were very clear, but maybe I could just press you a little on the detail of it. In the table that was provided, it said that the percentage of children identified as having an additional support need whether CSP was 1 per cent. You actually used a figure there of 0.3 per cent, so is that a more up-to-date figure? I was talking about the percentage of the total population, which is 0.3 per cent. The other figure is to do with the percentage of children with additional support needs. It's a different number that we're talking about. Of course, as the proportion of children with additional support needs goes up, the number looks bigger. Those children with additional support needs of a duration of more than a year are entitled to in-law a CSP. Is that correct? There is a very tight legal definition in Scotland, which I think is too tight, but the child, according to the law, has to be getting significant input from agencies other than education. This was put into the 2004 legislation. I think that we should be giving statutory support plans to children who have very significant educational needs that require a significant additional support than that which is normally available in the classroom. What is happening is that local authorities have been saying, well, we can't get input from social work and health, therefore the child isn't getting additional support, therefore they don't qualify for a CSP, but the child actually needs additional support. Our services from other agencies are being taken out of school. Children are being deemed not to qualify for a statutory support plan, which is why they're going down. We have to remember that 2 per cent of children had a record of needs prior to 2004. The Scottish Government told us very clearly that it anticipated no decline in the proportion of children with a statutory support plan. Clearly, that isn't what's happened. I'm trying to get at why that has happened, because I think that all the members of the panel have identified that as a problem. If nothing else, it affects the ability to access the tribunals, doesn't it? In your introductory remarks, you suggested that local authorities were telling parents that CSPs were of no value and that there were other plans that they thought were more useful, but you made the point that they had no statutory basis. In your answer, you said that the problem here really was that the non-educational support services weren't available and therefore the children didn't actually qualify. I'm not sure which is it. The misunderstanding within schools and local authorities, because they think that you've got to be getting the service to getting a CSP, but that's not the case. You've got to be needing the service. What we're finding is that, for example, if a CSP is open for a child at primary, when the child moves to secondary, they're saying, well, we're no longer getting speech and language therapy, we're no longer getting occupational therapy, we're no longer getting support from social work and CAMHS, let's say, so the child doesn't need a CSP, whereas the child desperately needs a statutory support plan. You think that local authorities are misinterpreting the legislative entitlement, the statutory entitlement? In my view, they are, but I'm not a lawyer here, of course, but if you talk to people like Ian Nisbyd, who's a real expert in this area, he would support my view. I do think that there are serious problems, and I think it's to do with the fact that local authorities, when the 2004 legislation was introduced, didn't want to have statutory support plans at all. I've done an analysis of the evidence they put in at that point, and the local authorities never liked allocating individual resources to children. They also disliked the fact that the statutory support plan has clear timeframes associated with it, and it necessitates regular reviews and parental and child involvement. Local authorities and schools feel that this is actually too much work, given their resource constraints. A further problem is that records of needs prior to 2004 were administered effectively by the Educational Psychology Service, who were expert in doing this, and had the clout to get multidisciplinary teens round the table. After 2004, what happened was that the responsibility was passed to the schools, and teachers do not have time or expertise or knowledge in order to do that. We found that many people in schools who are working in ASFL actually don't know what CSPs are. Just to put this in context, in a big Scottish secondary of 1,200 children, we now have either one or no children with a CSP. The expertise in schools is simply not there. Personally, I think that it would be much better if educational psychologists fulfilled a much larger role. I just wanted to add to much of what Sheila Gray has said and answer Mr Gray's question from another perspective, a simpler perspective. From the tribunals experience, it would appear that quite simply not enough in education actually understand what a CSP is. Secondly, they are unaware that where the criteria is met, there is an obligation to provide one. The majority of people that I speak to from a wide range of education authorities believe that they have a choice. If they provide a local plan—remember, we have no common definitions across the education authorities—they are all providing different types of plans. By way of example, I looked to recent references and the CSP request was refused, one on the basis that the child's plan was adequate, the other that a different type of local plan was meeting the child's needs. In both of those cases, if the criteria for the CSP was met, then the education authority actually doesn't have any choice. When that is conveyed by me to an audience of educationalists, I can see the face change from a nice rosy pink to pale white. It is a piece of work that is present and I try to reinforce on visits to education authorities. I think that it is not just about the complexity of the criteria itself, and I agree with Sheila that it is far too complex. I like the suggestion that she gives in her evidence of what the criteria ought to be, but there is a simpler matter at play here. That is an absence of knowledge and an absence of understanding of legal obligations. I just had one wee question of clarity on the numbers. I am still a bit confused about the numbers here. As a layperson coming at this, I see this 1 per cent figure and that makes me think that 99 per cent of children with ASN are denied their statutory right to CSP. That is not quite right, is it, because they might not all meet the criteria. What is the kind of volume of percentage of children who are actually being denied their legal right to CSP? I would have thought that, for example, most children who are looked after stroke care experienced should have a CSP. Since 2009, there has been an obligation on local authorities to assess whether this particularly vulnerable group of children should have a statutory support plan. These children are all getting support from education and from social work, so they would qualify. Why are not all of these children having a CSP? What was the number of record of needs that you said previously? It was 2 per cent of the total pupil population. That is now 0.3 per cent, so that might be a useful comparison. The fact that the numbers have been going down year on year is also important. I move to Mr Greer. I would like to go back to something that Professor Riddle said a minute ago. Let me know if that is not a fair characterisation, but would it be broad to correct to say that at school level there is a significant misunderstanding or lack of knowledge around CSPs? At local authority level, there often is some level of understanding, but there is a significant reluctance to grant CSPs because local authorities resources are stretched and they do not want to grant something so resource intensive. That would be true. When the responsibility was de facto passed over to school, there was not any assessment of whether teachers had the knowledge experience training time to do this. The local authorities were fairly sure that by doing this, CSPs would die the death. That is exactly what has happened. I would say that the Scottish Government needs to accept its responsibilities a lot more than it is doing. After all, it is the state that has a responsibility for ensuring the rights of parents and children. Passing the responsibility down to local authority and then local authorities passing it down to schools does not seem to me to be good enough. Moving to those children and young people who have a CSP, I would be interested in the experiences that you have all encountered here. Where CSPs are in place, are you finding that the commitments made in them are being consistently lived up to, particularly when it is involving multiple departments within a local authority? I think that we are all familiar with the challenges that so many children and their families are facing in getting a CSP in the first place, but for the 1 per cent who have them, once they get a CSP, are those commitments being met? Perhaps I can comment on that from a tribunal perspective. Obviously, the applications and connections of CSPs that are brought to the tribunal are not being considered either to be being met or being delivered in the fashion. There is a case that I referred to in my evidence in the city of Edinburgh against RAR, which is a good case perhaps for the committee to have a look at. It is very well set out and it explains why the failure to provide inadequate CSP actually amounted in that case to discrimination. Usually, the case came initially to the tribunal as a reference, claiming that the terms of the CSP were inadequate. Then it came as a claim because, quite simply, the appellant, the parent in this case, felt that the reference route was just not productive enough. The inner house of the court of session upheld the appeal on the basis of the inadequacy of the CSP. In essence, it simply, in a couple of sentences, said the child shall receive support from various people at various times. More or less, it simply did not set out what ought to be provided when, how and by whom. Perhaps I can comment on one of the points that you made earlier about CSPs being resource intensive. I actually think that that is a bit of a fallacy. I do not think that the CSP is intended or even needs to be resource intensive. I agree that it is far too complex a test to get a CSP, but when there is one in place, it ought to be setting out what should be best practice in any event, which is specification and clarity, timing and review. Really, that ought to be what is in place for any of the educational objectives that require to be met of any child with additional support needs. I think that there is a whole host of misconceptions around the CSP, one of which I absolutely agree that that is a probable reason for a local authority, an education authority perhaps to feel less inclined towards the CSP, but I think that it is a misconception. The last point that I would make in connection to the point that Sheila made about the looked-after population is that Government Law Centre in 2013 and then in 2015 made a freedom of information request to all of the 32 local authorities asking how many of their looked-after population had a CSP. The reply was a clarification that many did not actually know how many of their pupil population were looked after and some had not been assessed and many did not have CSPs at all, so I just wanted to finish that point. In essence, we see at the tribunal CSPs that are not working well because they lack in specification or they are not being reviewed regularly enough or there is a failure to set out clear ways in which the educational objectives are going to be met. To me, the nature of our office and the way in which we engage with children and families means that people tend not to phone us up to tell us how wonderfully well things are going and how happy they are with the support that is being provided. I would say that of all of the ASN-related cases that I have come across in the slightly over 18 months since I have been with the office, I cannot think of a single one where there was a CSP in place. In most of those cases, the parent was not aware what a CSP was. I think that anecdotally, and I would obviously defer to Sheila's evidence, but anecdotally in terms of our experience, that kind of absence of CSPs is definitely something that we are conscious of. It becomes particularly significant, as both my federal panellists have mentioned, because the importance of the CSP is that it comes along with a set of legal rights. It is not the same as a child's plan under GERFEC, it is not the same as a local authority alternative plan. There is a particular reason why the plan has statutory force, and it is because it comes along with legal rights that can be enforced. Professor Riddle, in your submission again, forgive me if I misunderstand this, but you mentioned the English equivalent to CSP, it is not like for like, but the English equivalent, the proportion of children who have one of those has gone up. I was wondering if, in your research, you have looked into why that is happening in England. Historically, over the past couple of years in Scotland, there has been a bit of lauding ourselves over the fact that we have broadened the definition of additional needs, so in theory more children should be getting more support. That has not been the case, but in England where they have kept a considerably narrower definition, the proportion of children getting that kind of intensive plan has gone up. Do you know why? I think that it is a different education culture in England. Again, I am talking in generalisation here, so you have to be really careful about not going in for gross generalisation. But there is a much stronger parental lobby in England, I think, and probably a greater awareness of parents' rights. But again, when we look at England, we find big differences by English region and probably education, health and care plan usage is highest when parents have the greatest awareness of their rights and local authorities are more responsive. Also, there is much greater use of the tribunal in England relative to population. Per head of population, 10 times as many cases are going to the tribunal in England, as is the case in Scotland. Just one final brief question. The parental and children's rights have been brought up on a number of occasions now. I have found, certainly from my experience of case work of individual constituents who have come to my office for help, that very often it starts off from a place where the family does not know their rights, but even once they do, that is not actually resulting in much progress being made. So there seems to be a very fair argument that there is a substantial number of people who do not know their rights and would benefit from knowing them, but the benefits are not nearly as significant as they should be, because once they find out what their rights are, they are still not actually getting the services that really their children are entitled to. Is that a bit interesting, particularly in the Stunsmure's experience through the tribunal? Is that something that you are finding that even once families are very well informed of their rights, it's not the breakthrough moment that it should be? I can't really say that's the case from the tribunal's perspective. My experience is that very few people know about the existence of the tribunal and when I've informed parent groups in particular of their rights to access the tribunal, they're quite surprised that that right even exists. What you do have to bear in mind is that by the time a case comes to the tribunal, the parent, the school, all of those involved will have reached a point of exhaustion. There is a very long journey before a matter comes to the tribunal and I've been asked the question, ought it to be the case that a matter comes quicker to the tribunal? I can't really answer whether that would be a better and more effective remedial route because we don't see that in practice. We see the long journey and then the tribunal. Although I have to say, we've received four child applications this year, two claims and two references, and I have to say that children are exercising their right to come to the tribunal far more quickly than a parent has been now. That's a very limited number so it's very difficult to read much into that and it's the first year since rights have been extended to children to make references. It's an interesting point so it would be difficult for me to analyse, given the low volume jurisdiction that we are at present, it would be very difficult for me to analyse that and to conclude as you have suggested, but it's my experience anecdotally that where parents are informed of the rights to access the tribunal, they're very interested in engaging those rights. Just a very brief follow-up on that and I accept that it's a very small number so it's hard to generalise or draw a trend from it, but those children and those families, is there a particular pattern in their backgrounds? Are those generally middle-class families with a lot of existing social capital? I can tell you that, no, not in respect of the children who are making their own references and claims. There are three children thus far that have made their parties have raised their own application. One has come back again having not been satisfied with the education authority's response to their application, which was made towards the end of last year and they've come up very promptly under another heading, and the other two are coming in with references. No, they're not. So, in a sense, that small number are breaking the trend in a number of different ways. What I can say is that of the four applications raised by the three children, they've all come through my rights, my say, which is the new children's service. It seems to me that that new children's service in its very infancy is having a very positive effect in terms of having matters brought to the tribunal far more quickly than happens with parents. Thank you very much. To add to that, our analysis of the Scottish Government statistics suggests that you are much more likely to have ASN identified if you live in one of the poorer parts of Scotland, particularly social, emotional and behavioural difficulties, which is the biggest single category. But inversely, you are much more likely to have a CSP if you live in the more advantaged parts of Scotland. Local authorities generally say, if parents really push for it, yes, reluctant will give a CSP, then the CSP may be written defensively so that it actually says as little as possible about resources, and then the parent will have to struggle after that to get it reviewed to stop it from lapsing. Fair which. Just before we move on, can I ask Professor Riddle? We have mentioned variation across the 32 local authorities. Are there areas where there are more CSPs in place and presented to the population of school children? Across all local authorities, the proportion is very low, so it would vary from 0.1% to 0.5%. It is within that very narrow range. There is much wider variation in the proportion of children who have been identified as having ASN of some sort. I want to pick up on that point about variation, but it is with regard to classification, which is on page 9 of your evidence, Professor Riddle. I was quite taken with the multitude of differing approaches. I am sure that, if we walked into any school in the city of Edinburgh today, we would find examples. If you asked for an example of a support plan, you would be given perhaps a different approach, but something would exist. In a school that I taught in previously, it was IEPs that we used. We also had confidential information booklet, so it is not to say that not having a CSP does not mean that there is support in place for the child. However, I wonder whether the difference between what is in place, as opposed to the legal obligation on the local authority. Is this about risk-averse local authorities? Do you think that that is the tension here? Perhaps it is just schools not understanding the difference, and councils being a bit concerned about where that might lead? I am sure that that is an element in the whole thing. I completely take your point, and Mair has already made this point, about the proliferation of plans. Again, this is an example where the system is not working with the service user in mind. Just imagine that you are a family that is moving across Scotland. Suddenly, any plan that you have is invalid in the new authority, and presumably an assessment process would have to start again from scratch. It is designed with the practitioners in mind and not parents and children. It should be the other way around. I wonder if we could go back just a step, because, in accessing a CSP, you have to have identified the additional needs in the first place. I just wondered what your thoughts are on that. My experience in my own local authority is that they are very unkeen to diagnose specific learning difficulties and say that it is not necessary to have a diagnosis. It is not necessary to have an educational psychologist assessment, and quite often they are asking teachers to identify children with quite specialist needs from a mainstream classroom. Is that something that you have come across? The local authority has the responsibility to carry out statutory assessments. It is a legal responsibility, but most local authorities in Scotland have passed that down to the schools, so teachers have been given the responsibility. Of course, teacher assessment is very important. Nobody is going to deny that. For more specialist things, you need, at times, to have an educational psychologist doing an assessment that only an educational psychologist can do, or else some sort of medical practitioner, for example, an expert in mental health difficulties, may be required. I think that just delegating this entirely to schools means that local authorities are, again, getting out of their legal responsibilities. One of the new rights that children have is the right to request a particular assessment under 2016 legislation. How a child would do that, nobody has got the foggiest idea. If a child approached a school, they wouldn't know what to do. If the child approached the local authority, they'd have trouble finding the right person in the local authority, and then the local authority would probably pass it back to the school. Again, I do think that because we want to incorporate the UNCRC into domestic Scottish legislation, we've got to be much more proactive in doing that, and having rights on paper is meaningless unless they're really easy for people to use. Do you think that, in relation to the CSP, you were saying that local authorities misinterpreted? Do you think that it's the same just misinterpretation in this case, or do you think that it's actually a deliberate choice to pass the buck? I want to be very careful, because we do have to remember, of course, that local authorities are working with constrained resources, but I think if they were to think about what was really going to be in the best interests of children, they wouldn't be simply passing it every time back to schools, irrespective of whether the expertise is there in schools. It's almost for some children as if their time in school is passed waiting for the right assessment, which would lead to the right resources being released. So, for example, one child that I encountered recently was 14, had spent a vast amount of time actually out of school getting ostensibly flexi education when he was sitting at home watching Telly with his mum, and he was waiting for an assessment of ADHD, which the school thought was needed, but they felt that CAMHS had to be involved to do that, so that the child wasn't getting an assessment until they were going to leave school, which is completely nonsensical. You can't do anything about helping that child at that point. No, I mean, I've certainly seen that, because I've got a way of at least two or three cases, again, in my own constituency, where there are young people waiting three, five years for a CDAT assessment in relation to suspected difficulties with autism, and they're just told there isn't anyone to do the assessment, so the school will say, well, there's nothing we can do if the NHS and local authority can't provide you with the assessment, so kids just don't get an education. How would you suggest to parents they do in those circumstances if they can't access a CSP? What would the suggestion be in terms of accessing the tribunal? The reference to the tribunal, as can the child in connection with the CSP if they fit within the criteria. There are a number of tensions here. The act deliberately doesn't specify, doesn't define what the term additional support needs means, and I think that that's a very positive thing, because it stops us labelling and categorising and narrowing things in and out from time to time. We have the provision in section 2 of the CSP, which doesn't say that you have to have a diagnosis, but it does say that there are certain criteria that have to be met before you're considered to meet the criteria for the CSP. We have Scottish Government classification of additional support needs, which is broken down to 23 different categories. What I always do is emphasise that the act, the legislation, the primary legislation does not define, so it's not a diagnostic piece of legislation. In practice, my experience is this, that teachers generally are waiting on a diagnosis, they're waiting for a name to be given before the resources will be attached. Broadly speaking, part of the reason for that is potentially down to deciding which resource should be used, which finite resource should best be used in difficult circumstances, but my concern is that this most usually involves a very vulnerable number of children, and my concern is that their rights are being overshadowed by resource-driven decisions rather than needs-led decisions. Who do you think should take responsibility for that? You're back into that question where local authorities say that they don't get enough money from the Government. The Government says that they're giving money to local authorities and, meanwhile, children are sitting at home unable to access their legal rights to an education. Who takes responsibility for that in the system? The beauty of being a tribunal member is that we are not resource-led and we are looking at the particular needs of the particular child at the particular time. If a tribunal forms the view that an education authority has failed in its statutory obligation, then the tribunal will make an order accordingly. The duty then is on the education authority to do what the tribunal indicates it ought to do or to take an appeal against the tribunal. There are a low volume of appeals being raised against the tribunal. In the last year, when we transferred in to the first-year tribunal with a new, easier appeal system, no education authorities have yet taken an appeal against the tribunal, and, in its earlier years, there was a flurry of appeals by some of the more litigious education authorities for clarification of the law. In a sense, the tribunal provides the definitive answer to a complex set of circumstances. If the Scottish tribunal was working at the rate that my English counterpart is working at, then perhaps we would see fewer problems of stagnation, but the tribunal is not obliged to consider resources, apart from one of the defences of the placing request references. When it comes to CSPs, if the criteria is met, quite simply, the law is quite clear. There is no dubiety around this. The education authority is failing if it fails to provide a child with a CSP where the criteria is met. It is not the case. The law does not say where the criteria is met and you may provide a CSP. It is quite clear that there is an obligation here. I suspect that, in all of the education authorities across all 32, there will be a number of children who do not have CSPs quite simply because the education authority has failed to appreciate that it does not have a choice. It has an obligation. What you have talked about would certainly reflect the experience that we have had in terms of cases. A number of situations are exactly like that, where usually the parent has phoned up and is talking about, they have been told that an assessment for autism is going to take 12 months to put in place and that nothing can happen until that assessment is done. That is very much our advice. It is around the legal routes to challenge that, to go to the additional support needs tribunal. The tribunal used to be called the additional support needs tribunal. That raises some other issues around the resilience and the capacity of families and of children to challenge decision making and to access those legal processes. The tribunal and the Scottish Government have done a great deal of good work that may refer to trying to make these processes more accessible to children. We are hopefully seeing the fruits of that in terms of direct engagement of children within the tribunal process. We still have some of the legislative barriers around capacity and wellbeing tests. Those are particularly significant for looked-after children who may not have a parent or someone who is able to push at that door and challenge decisions and ensure that they are able to make it through to that place where they can have an independent determination of what the challenge rights are and what the challenge is legally entitled to. Thank you very much. I am quite interested in exploring the policy of a presumption favour of mainstream that has to be underpinned by effective additional support to level the playing field so that young people can access mainstream education. You are talking about exercising your legal rights in the CSP. That is a small group of young people. I think that we are quite struck by the evidence that we have had, either anonymously or by families who have fought this battle. The theme that comes out of it is about the battle, first of all, and even where a young person has identified his additional support needs, it is sometimes shifting of resource rather than increasing resource. For those who do not qualify to go into the legal process, there is a broader question. I want to ask you some questions about that. A lot of the reports that are being provided by various groups including those supporting young people with autism talk about part-time timetables and so on. I wonder if you will get any sense of what that actually is in practice and at what point do those part-time flexible timetables become not mainstream education at all? For example, somebody gets an hour a day but their mum or dad has to come in and sit with them at lunchtime or half the time they are in sitting outside the headteachers office. Is there any work being done to try and take this kind of anecdotal evidence to understand properly at what point the mainstreaming policy has simply been broken? From a tribunal perspective of the 64 place, the vast majority of all placing requests that are made to the tribunal involve a placing request from usually a mainstream environment to a special school. That speaks for itself. Of the 64 cases this year thus far, only one involves a mainstream school. The remainder are all placing requests made by parents for their child to be placed in a special school. Again, in the majority of those instances, those are cases where the parent has formed the view that the mainstream provision is not adequate adequately meeting their particular child's needs. On occasion that can involve examples such as you have just described. Most usually the number of hours that the child is able to attend mainstream schooling is felt not to be adequate and the level of support available to the child in the mainstream environment is not found to be either consistent or adequate. The whole purpose of the presumption of mainstream in the cases that come to the tribunal is not felt to lead to inclusion at all. In actual fact, the way in which the mainstream school is applying the level of support required can quite often lead to the child feeling isolated rather than included. Of the cases that come to the tribunal, it would suggest that the presumption is not working as well as it was intended. Because the child has been inappropriate placed in mainstream in the first place or that having been placed there, they have not got the support around about them to make that meaningful. Somebody who is in school for an hour a day is not necessarily that they are only able to cope with being there an hour a day. It is that the system and institutions are only able to cope with them being there an hour a day because there are not the supports which are, in my view, two quite different things. I wonder if you have more generally a sense does that mean that there actually... What is the reason we are not delivering a presumption in mainstreaming? Is it because we are inappropriately placing young people there and we do not have specialist places for them to go? Or is it because, even though we accept presumption, means to me that we are not putting the resource in behind to make that meaningful? Is there a risk when you create a presumption such as this that you move all resources to that end and you form the view that specialist resources are no longer required because of this presumption? Is my view based on the tribunal experience over a number of years that there will always be a need and a place for special schools? That is borne out by the volume and type of place and request that comes to the tribunal. The two examples that you have given are broadly the same types of cases that come to the tribunal either where the child has been placed in a mainstream environment with the support of the parents. Everyone is buying in to the mainstream schooling but in practice it turns out not to be delivering the needs of the child in the view of the parent. The other is where the child is in the mainstream environment and has been placed there. Perhaps it is a transition from primary to secondary school and quite simply the level of resource that the school can place around the child is in the parent's view insufficient to meet the child's needs. I have a very strong view that is consistently borne out by the evidence that I see before the tribunal that we are continuing to try in Scotland to make children fit the systems that we have created for them rather than make the systems fit the child, which really ought to be the core of getting it right for every child. Despite the many areas of progress that we have achieved, we are still failing in that respect. As long as we try to make the systems fit the child, we are going to continue to see problems of that nature. Has there been a researcher around this area of when it is not mainstream? Unofficial exclusion is obviously a very difficult area to research because it is under the radar. It is unlawful. You are not allowed to send children home or to say to parents that your child can only come into school if you are not allowed to send children home to say to parents that your child can only come into school if you are going to be around at break and lunch time. That has a devastating effect on parents' ability to work, for example. There has not actually been any research on that. There have been some freedom of information requests on what is called flexie education, which seems to be growing in Scotland. This is when parents are told, please keep your child at home for, let's say, three quarters of the week, and we will call it home education, so the local authority passes responsibility to the parent for that proportion of the week. Clearly, there is absolutely no evidence of what is actually happening for those children. We just do not know. There has not been any research, but I think it is worrying. My own view about the special mainstream debate is that we certainly need special schools, but there has not been a huge change in Scotland. When you look at the data, you find that for the past 50 years, about 1% of children have been in some sort of special setting. So there has not been a mass dumping of children from special schools into mainstream. There is sometimes that misapprehension there, I think. But I do think that the capacity of mainstream schools to support children is the issue. As we have reductions in the expertise in school, in additional support needs, and in classroom assistance, we're going to have more and more difficulties here. We must acknowledge as well that some really good work is happening in Scotland. So, for example, most secondary schools now have special units attached to them called maybe departments of additional support or whatever. When these are running really well, children are able to move between mainstream and special in a way that works well for them and for other children in the class who also have to be considered. When it doesn't work well, of course, is when the child is spending all their time in the special unit but could actually be spending more of their time in mainstream. So we need to be able to learn from best practice as well, and some local authorities are doing a really good job here. I do think as well, there is sometimes a tendency to say, if we got rid of all these troublesome children and put them in special schools, all would be well. But we must remember that some of our problems have been to do with what happens in special schools. So you will remember before Christmas in Edinburgh that there was a lot of concern about what was happening in a special school for children with autistic spectrum disorder when the teachers were saying, we can't teach these children. And the local authority was saying, well, I'm sorry, but it's in your contract to teach these children. So many exclusions for children with additional support needs are from special schools. They're not from mainstream schools. So it's not simply a matter of saying, get rid of these troublesome children to special schools, all our problems are over. That absolutely is not the case. I think we need both systems to work together, special and mainstream, and for mainstream to be properly resourced. I mean, I think the evidence we've had is not so much that people in the system are seeing that. It's just that they're feeling that the young person's been let down and it theoretically looks like they've been supported in mainstream, but the reality is something quite different and informal exclusions, very flexible timetables, far more flexible than I imagined it could possibly be. They've still been defined as mainstream. Is that something that the Children's Commissioner is looking at in terms of a broader issue around, I mean, enforcement of a legal right is one thing, but actually the general policy not on the ground being real is, I wonder, if that's an area that you've looked at. It's certainly something that's come up, again, through the contact with children and families through the advice service, exactly the concerns that have been expressed and we touch on it in the investigation report where we raised concerns about the use of seclusion, not just in terms of the fairly obvious human rights breaches that come from locking a child in a room, but for this being used as a form of behaviour management and as a form of exclusion without having to go through the legal process that you should be going through if you're taking a decision to exclude a child. It's not something that we're specifically looking at in terms of a follow-up to the report, but it is an issue that is part of the report in that sense. In terms of the connection with seclusion and the concerns about the way in which it's being or it may be being used to unlawfully exclude children from education and to deny them their rights to education. I'll ask one last point around the research because it feels like there's a rationing going on through the use of the CSP or not, although I think that Jenny Gilhaw's point about there being other plans is also true, but this is not new. You talked about records of needs. I'm not going to be able to access it, because I'm not going to put it in. How is it possible to show that kind of... to make real or expose that rationing mentality so that you can then address that problem? From the point of view of the educational psychologist, you should have simply been honest with the family. I'm not putting you in something that you can't then end as unrealistic. I'm not putting you in something that you can't then end as unrealistic. I wonder whether that's part of the problem that, actually, there's suppressed demand because people are having to deal with the real world. The tribunal doesn't have an issue around resource. It's about right, but then there are people who've got to enforce those rights by finding the resources. I think that it's fair to say that the tribunal is not always the most popular of institutions when it comes to some of the decisions and implications that that places on education authorities, and that's something that I deal with quite regularly, and I have to remind education authorities that we are a judicial institution that we make legally binding decisions. But when it comes to how do you overcome what's actually happening in practice, there is a code of practice that's available that is actually a useful, well-set-out code of practice that gives a range of examples, and a great deal of information for education authorities to follow, but it's my experience in a tribunal. For example, a headteacher who's asked to comment on why they're not complying with a section of the code, which is a statutory code of practice in terms of the 2004 act, they'll be unaware of the code exists. So I think that the reason it's happening is people are trying to juggle far more plates in the air with fewer resources, which is something I'm sure this committee hears all the time, which is something the tribunal hears all the time, but ultimately we still have to, with our finite resources, begin to address the problems that exist, and I think there has to be a process of informative learning, which begins at teaching level when teachers are learning to be teachers, and I think that there has to be an on-going model of learning that doesn't stop once you become a teacher, and I think that we have to respect and understand that additional support needs is a singularly complex educational learning environment, and you have to keep talking that up, but I also think that you have to monitor the effectiveness of that, and the Scottish Government has a role there in terms of monitoring educational authorities' effective application of this legislation. I think that you have to go back to the very roots and see it all the way through, and not have teachers who have been teaching for decades who are doing an exceptional job, no doubt, but perhaps are unaware of the changes and shifts in terms of legislative obligations and codes of practice in terms of how those obligations are delivered. Of course, the evidence would suggest that it may be old now, but I remember when it was quite new, support for learning teachers who went off and trained for a year and then came back and were able to support their colleagues with strategies and so on, so they had an accountability and a responsibility, and perhaps one of the problems now is that that responsibility is spread out without the expertise and support to the individual teacher to be able to deal with it in the way that they might have done before. The thing is to recognise the value of the classroom assistant. Quite often it is the case that the classroom assistant or the support assistant, depending again, we do not have a common vocabulary, which I really would love to see across our 32 authorities, but the classroom assistant or the support assistant will quite often be the one that is providing one-to-one support to the child with additional support needs in a mainstream school. They hold a great body of practical knowledge in terms of the needs of that child, but they may be quite unaware of some of the statutory obligations that coexist along with delivering education to the child. I think that in an education environment there is a great need for much greater education in this. You will know obviously that the Parliament voted unanimously to maintain the presumption to mainstream a debate that we had four weeks ago, but we also took on board a lot of the comments that are coming from teachers and parents that, in their opinion, there is a growing number of youngsters who are not coping terribly well with mainstreaming, after which the Cabinet Secretary, very welcome in my opinion, said that he would review some of the guidance surrounding this. Do you believe that there are recommendations that you could make to the Cabinet Secretary as to what he could do to improve the guidance? We've obviously got a list of three specific points whereby the automatic decision to use a special school rather than mainstream is on these three principles. Do you believe that we should be extending those principles or amending them, or are there suggestions that you could make? That's a difficult question, I think. At the moment, there are three caveats that surround the presumption of mainstreaming that it shouldn't involve unreasonable public expenditure. It should be in line with the parents' wishes, and it shouldn't be against the interests of the individual child or the interests of the other children in the class. Those, I think, should be perfectly sufficient to ensure that children are not inappropriately placed in mainstream. It is the case now that many rural local authorities in Scotland have no special schools, so they tend to be dependent on neighbouring authorities. For example, East Lothian and Borders would be dependent on Edinburgh. Many of these authorities do have special units attached to mainstream. I think a lot of the problem is to do with how things are being managed in the mainstream system. I'm not sure that major changes are needed. The caveats that already exist should be sufficient. Obviously, there are genuine concerns amongst the teaching profession, particularly in the primary sector, whereby it appears from their opinion that there are a growing number of youngsters who they're concerned about because they feel that mainstream schooling is perhaps not in their best interests nor in the best interests for that child to be in the class or that there are other children who are affected by their presence. That then determines that we have to decide how to address that. I ask this question because part of the evidence that we were given is that we know of at least three special schools in Scotland who are under capacity. One of them told us 63 per cent capacity only. Another one told us that it was about 70 per cent and another one told us that it was just over 50 per cent. My question to you is, if that guidance, if those three principles are correct, do you believe that the interpretation of that needs to be looked at in terms of the teaching profession and local authorities? How do we get round this dilemma that we have that in theory people would like mainstream, the presumption to mainstream, but in practice it's posing problems? I don't think that we yet know what to do about that. I think that I've already fed into the guidance with the tribunals comments in terms of how some of the phrasology is set out and some of the interpretation. I think that the guidance is going to be a crucial tool. It's really important that it's as clear as it possibly can be because what we have to remember is whilst we have the statutory presumption and we have the three principles set out, every education authority devises its own policies in terms of its schooling and education. We need to be very thoughtful and examine the extent to which the education authority's policies sit comfortably alongside that presumption. By way of example, one case was brought to the tribunal challenging a particular education authority's policy because the way that it phrased its policy was considered to amount to discrimination to a child with a particular disability because it had placed an overt emphasis on the presumption and they were attacking that policy on the basis that it was so heavily in favour of the presumption that there was very little scope for the individual assessment of children with additional support needs. I think that, on the one hand, the guidance has to be very clear and we need to use what we have learned from tribunal decisions in that respect as well because the tribunal, of course, can provide clarity in terms of matters of interpretation and the judgments of the higher courts. We need to make sure, as in all things, that the education authorities are applying the guidance, not just at strategic level, if I can call it that, senior management level, but those within schools, from headteacher to teacher to classroom assistant, understand the scope of the guidance as well. The only way for you to do that is to monitor statistically the extent to which the figures support the intention of the presumption. Thank you for that. My last question, Professor Riddle mentioned earlier that you believe that there has got to be much better co-operation between mainstream schools and special schools, some of which are obviously in the independent sector. Could you just expand on what you think needs to happen to ensure that there is that better co-operation? Right. I was specifically referring to special units attached to secondary schools. I actually believe strongly it is important that we educate our children together as much as possible. The impulse to segregate is generally not a good one. But we do need, as Mae has said, to really look at the needs of individual children and of course the needs of other children in the class. We can't forget that. So we need to have much more flexibility about for some children having movement between mainstream and special. It is generally much better if a child, if at all possible, is going to the same place as the neighbours, as other children. Children need to grow up together in the same communities. If we take children out of their communities, we are creating really another set of problems. That can be right for some children. Residential special schools can work really, really well for a very small number of children. But it's not going to be a realistic answer for the majority. Quite apart from anything else, it's far too expensive and we can't pretend resources have absolutely nothing to do with this. It can cost as much as £100,000 a year for a child to be in a residential special school 52 weeks of the year. So that's right for a very small number and we should spend that money. But for most children, it's going to have to be a sensible arrangement between mainstream and special. And I am interested that it's primary schools that are saying they've got the biggest problem. Because intuitively, it's always been the expectation that it's going to be more difficult at secondary because they're not having to move class, move teachers, difficult subjects, etc. Primary schools in Scotland have generally been positive, inclusive environments. But if there are a lot of problems arising in primary, it suggests that we're not doing enough to assess and meet the children, the needs of the children who are coming into those schools. We can't blame the children or the parents for being inadequate. The schools have got to be providing the services that the children need. And we can't become punitive in this. We've got to punish the children and punish the families. We've got to devise systems that actually work for everybody. I wonder if I could ask Mr Hobbes to expand a wee bit on the constraints and seclusion. What redress do parents and carers have if they're concerned about this happening to their child? The reason that we focused the reports and the investigation in the way that we did, particularly around the availability of policies and guidance and around the recording and monitoring of information and statistics, was precisely because of that reason. One of the things that parents had consistently said to us was that when they were raising these issues, when they were raising these concerns, they were already struggling to achieve what they would recognise as justice. One of the reasons for that, I think, was because there's a lot of inconsistency at local authority level around the guidance, around definitions, around use of language, around legal tests and thresholds that are being applied. Having that robust and consistent set of guidance and policy in place at a national level, and these are human rights issues, and as has been mentioned already, that means that it's squarely the responsibility of the Scottish Government to make sure that this is happening. Having that at a national level means that you've got a framework against which provides predictability and clarity and certainty for local authorities and for teachers in terms of knowing what good practice looks like, how they're expected to behave, what the limitations and the constraints are around their practice, but it also provides a really clear framework for accountability for parents and for children concerned where practice may have slipped below what would be considered acceptable. That means that you can actually make use of complaints mechanisms, so you could refer the matter to the SPSO. You could go through the GTCS if you were concerned about the conduct of a particular teacher. You could, in extreme cases, go to court and seek judicial review. There's a number of different routes through, but the effectiveness of them depends quite significantly on having that robust policy and legal framework in place to allow people to understand what are the standards that we expect to be applied in our schools. What's your sense of what's been happening since the commissioners report in terms of is it still happening? Is it still an issue? I think it's still an issue. I think it's too early to say that we produced a report in December and we've magically fixed the problems. The responses from local authorities have been coming in and from Scottish Governments. We're in the process of analysing those responses at the moment. I would say that we've had some really positive and constructive discussions with COSLA, with ADES and with SOLIS around the recommendations and local authority responses to them. We're going to be publishing the local authority responses and our analysis of those in due course, but there is quite a bit of work around collating all of those responses, the responses to the individual recommendations and making a determination and providing some analysis about what we consider needs to happen next. Scottish Governments, again, we've had some useful discussions with officials. We've had an initial response from the Cabinet Secretary. I look forward to a further response towards the end of April, May, when the Scottish Government has concluded some work that it's currently undertaking with COSLA and with local authorities. Again, we're going to be publishing that in the next couple of weeks, along with our response. The discussion with officials was useful in the sense that it allowed us to explain really clearly and to discuss some of the recommendations, why we were locating this at Scottish Government level, and why we think that this is something that needs to happen nationally rather than being left to individual local authorities. It picks up on a number of the points that have been made already, the idea that these are human rights issues and these are legal obligations on the state, so it's the responsibility of the Scottish Government to make sure that there is that robust policy and legal framework in place to ensure that it's meeting its obligations to respect, protect and fulfil children's human rights. You can expect in the next few weeks to see probably quite a lot of information coming out from our office around the responses and around our analysis of them and what we think needs to happen next. That's helpful. Dr Rowan. Thank you very much, convener. Good morning. I was really interested in taking a step back and looking at the identification of young people with additional support needs. Looking at a table that we've got as a committee here, I'm probably venture to suggest that I'm not the only person on the committee who's confused by it. It's not being supplied by ourselves, but it's the percentage of pupils with identified additional support needs in 2017. I'm sure you'll have views on this, but I'd be keen to see if you have any kind of light on why the results vary so much across the country. For instance, Aberdeinshire, and looking at the results, I should say, for primary schools, Aberdeinshire has 41 per cent of primary pupils identified as having additional support needs. A few miles down the coast in a similar local authority, Angus has 10 per cent. In secondary, there are some local authorities, by no means outliers, such as North Lanarkshire, who have, in secondary, 16 or 17 per cent, but some local authorities, such as Highland, have 40 per cent. Those are massive variations. I understand that local authorities may have reasons for collating information differently, but can you offer any insight as to why they vary so wildly? We have to understand how the data are gathered. Those data are drawn from the school census, which is filled in at school level every year. Somebody in the school, it might be the Deputy Head Teacher or Principal Teacher Learning Support, will be asked to tick boxes to say which children have some sort of additional support need. It looks like we've had the huge expansion of children in Scotland with additional support needs and widening variation across local authorities, but this is because in schools there are different accounting practices, so it's really largely to do with the fact that in some schools, if a child breaks an arm, that will be counted as an additional support need. In other schools it wouldn't. More and more different types of plan looked after children accounted automatically, children on the child protection register, so more and more and more plans are being counted in different local authorities, different schools. It's largely to do with who fills in the census and what gets counted. It doesn't mean that in some local authorities there's far more additional support being given to children. There's no connection at all between how many children are being counted as having additional support needs and who's getting additional support. Following on from that, you've mentioned that different schools will take a different approach, but surely to account for some of these very significant variations, there must be different approaches taken in local authorities, otherwise the wisdom of crowds or whatever it is would even these things out. Do you think that local authorities themselves take a different attitude rather than just schools? It's not just schools. Local authorities will give schools guidance on how to fill out the census in that local authority. Really it's an artefact of what local authorities believe should be counted as an additional support need. As Mae has said there isn't any legal definition. It's incredibly vague and once you get to the point when almost 50% of some children in some local authorities are being counted as having additional support needs I think the category becomes meaningless actually. In some schools it will mean every single child has an additional support need. What additional are they getting to that which would be normally available? We need to look much more at what should be normally available in schools. I actually think that fewer children are having additional support needs and then ensure that those who are counted are getting some sort of additional support. I keep coming back to this variety and I understand and I appreciate the points that are making about some of the reasons behind it. Do you think that vagness or this variety has an actual impact on the experience of children? Or is it purely an accounting exercise that differs from place to place? It can be. It is partly an accounting exercise but I think that the Scottish Government thought that it was a very positive thing to have this expansive umbrella definition of additional support needs. Those who do not have English as their first language are counted as having additional support needs. They have no learning difficulties. They are simply learning English generally very quickly. I think that it is much better to have a narrower, more precise definition and then to ensure that support follows the identification. That is not what happens at the moment. In fact, I personally would not want to have children who do not have English as their first language as having additional support needs. I think that it has been strongly recommended by rapporteurs from the UN committees on rights of children that we should not put children who are learning the language as being part of this additional support needs special educational needs group. I would take that group of children out for a start. That is one of the largest single groups. I will leave my questions there. That is very helpful. Thank you, Mr MacDonald. Thank you very much. Just to follow on that theme. In your paper that you submitted you highlighted that the number of ASN pupils has risen from 118,000 to 199,000 and as Alasdair already identified 80% of that increase is covered by three categories. There is 25,000 additional pupils a 270% increase who have social, emotional and behavioural difficulties 24,000 are a 500% increase of English as a second language and 17,000 additional pupils again 270% increase who have other moderate learning difficulties. Having identified that there is a problem with the definition what do you think the definition should look like and should it be built in the legislation? I think personally this is an area that needs to be entirely looked at because I do think that many of the categories that are being used are pretty meaningless. Social, emotional and behavioural difficulties is a highly stigmatised category. No parent lobbies for their child to be counted. It says bad child and bad family and it's a punitive category basically. It doesn't actually exist in England. There the category is social, emotional and mental health difficulties so it's much more of a focus on the child's needs and difficulties rather than them behaving badly in school. It's very much dependent on teacher subjective judgments. I think again we'd be better off going back to a narrower definition which would involve much more careful identification rather. If we carry on expanding where is this actually taking us would be the question. You mentioned that a lot of us depends on teacher subjective judgments. Seeing the wide variation of percentage of pupils across local authorities is there any evidence within individual local authorities that there is wide variation within the schools? Again, the breakdown by school hasn't been done because the Scottish Government aggregated data does not allow us to do that analysis. I suspect yes, there would be wide variation. When we analyse the data by SIMD we find that children living in the most deprived areas of Scotland are much more likely to be identified as having additional support needs, particularly social emotion and behavioural difficulties. Thank you so much. Professor Riddle, you've spoken already today about most Scottish secondaries having a department of additional support needs and I think that's pretty well understood now. I think that what's changed in the last decade is our approach to behaviour. When I first started teaching we had a department for behaviour support and we had a department for helping children and one was about discipline. I think that cultural change in our schools is partly responsible for some of the increases, particularly with regard to social emotional and behavioural difficulties but I was quite taken with that increase from 14,738 in 2010 to 39,642 in 2017. I'll try not to get too political here but we don't exist in a political vacuum in Scotland and I wonder therefore obviously we had a change of government between 2010 and 2017 if any analysis has been done on the impact of austerity on additional support needs and people's needs. Well, we do know that local authorities have tried to protect their additional support needs budgets so far but many local authorities are signalling that as cuts continue they're going to find it harder to protect additional support needs budgets. We also have a system in Scotland where we don't just count children's principal learning difficulty we count as many difficulties as children have so if a child has learning disabilities and social emotional and behavioural difficulties or is deemed to have both these difficulties then both get counted so it could be that we're simply not putting enough resources early on in managing children's behaviour in primary schools in particular in helping all children to be included and in having classroom assistance and learning support skilled qualified trained teachers available to help children. I'm very unhappy about the category of SEBD in general I really don't think it helps us very much actually. I think that distinction between discipline and behaviour is really quite important and it's something that came across quite strongly through the investigation was that far too frequently we were seeing policies that were located and described children's behaviour as problematic, aggressive and violent and therefore the responses were about dealing with that rather than recognising these things as indications of a need that needed to be met and that's one of the really strong recommendations is to make sure that we frame these things appropriately both at local authority level and for the Scottish Government to make clear within national guidance the way in which we respond to children's needs has to be based on that recognition that behaviour is communication and that what we're talking about very often isn't unmet need that the child is trying to express rather than problematic behaviour that has to be dealt with through discipline and punishment. We have certainly moved away from that in the past decade and approaches to teaching and learning are certainly very much now focused on promoting positive behaviour in the classroom but I'd like to go back to the support and training available for teachers because Professor Riddell in your submission you talk about local authorities failing to provide information and training sessions for practitioners, parents and children and young people so what kind of things can the Government do then to encourage local authorities to meet those obligations that might be done at a national level? Well again, I think there is confusion about who has responsibility for doing things in terms of training. I mean the Scottish Government obviously has ultimate responsibility for making sure that staff in schools are trained and qualified. We've had this legislation about children's rights that was passed in 2016 but our work in schools suggests that there hasn't been training at local authority level any training in schools vis a vis the change so teachers simply and classroom assistants don't know about it they have no way of knowing about it Head teachers say to us that they've been astonished that they suddenly have new responsibilities they were totally unaware of it because it hasn't been communicated to them by the local authority so I think it needs to be clear what the Scottish Government is going to do and what local authorities are going to do and what schools are going to do but there is a big problem with the training of additional support needs staff as you said, Ms Lamont that you remember the Halcyon days when people used to get a whole year sabbatical to go and do a master's qualification there has been a major decline in qualifications of staff In Scotland the regulations state that the only teachers who require an additional qualification are recognised qualification our teachers who are teaching children with visual and hearing impairment those are the only teachers who require additional qualifications and they're very often just getting the training on the job rather than doing recognised courses the teachers who have the expertise through having done properly recognised courses are actually by and large retiring now so there's a massive gap in the system and the total lack of clarity about how teachers are magically going to get trained Could I just add something Ms Gilruth, it was a comment you made about how we've moved on in terms of recognising behaviour and so on we do have to remember though as recently as towards the end of last year teachers were refusing to teach children with additional support needs whose behaviour they felt was far too challenging but the committee may already be aware of but just in case it's not of the important judgement of the upper tribunal last year which came from a case from the Equivalent Tribunal in England where the upper tribunal distinguished in a case of discrimination the distinction between behaviour arising out of a condition and behaviour which is the sort of behaviour which fits within the report of the Children's Commissioner recognising behaviour is communication and certainly from a tribunal perspective I'm not entirely convinced that we've moved on as much as we like to think we have in that respect because the types of cases we see at the tribunal are cases where behaviour is not recognised necessarily as arising from the child's additional support needs and it leads to a whole manner of complications which gives rise to the matter coming to the tribunal just to add to that the best special units attached to mainstream don't separate out now children with behavioural difficulties children with learning difficulties their individual needs are recognised and it's recognised that a learning difficulty is often associated with a behavioural difficulty I just wanted to pick up our follow-up on a point that Jenny was making about changes in the last few years in terms of austerity and other factors and quite rightly we're talking about the responsibilities of local government and the Scottish Government to try and address some of those problems but also there's a question to suppose about where the causes lie and one of those causes most people would now acknowledge or many people I should say would now acknowledge is that many families have found themselves under pressure from changes to the benefit system so when it comes specifically to social emotional and behavioural difficulties is there any evidence at all that some of these pressures that families are under account for some of these very, very significant changes well we do know that it is the poorest families in Scotland people who are living in the poorest neighbourhoods in Scotland where the children are being identified as having social emotional and behavioural difficulties and there has clearly been a big expansion in that category that is very hard to put a kind of cause and effect analysis in place but clearly if families are under greater stress it would be quite surprising if children weren't reflecting those levels of stress that people are under can I also say that it's very likely that children who are looked after will attract that particular categorisation and my concern for that particular group of children who I think have that added layer of vulnerability is I worry about who is advocating for the looked after child in terms of their additional support needs and you'll be aware of the corporate parenting responsibilities that fallen education authorities and I make the point lightly in my written evidence that to date the tribunal has not received an application from a corporate parent for a looked after child so anecdotally of children who are being changed placement from one school to another in a resource based assessment which has created disastrous consequences for children one of the children that we consulted with in the course of the tribunals improvements in terms of access to justice was relocated from the school in which that child was placed and such was the devastating effect of that that that child is now detained under the mental health act I also serve in the mental health tribunal and it's a great sadness to me that I quite often see I was a children's reporter many years ago I quite often see children people who have been children come to the mental health tribunal and children who have had challenges in education come to the mental health tribunal as well so I have a really growing concern that the looked after population in terms of their schooling and in terms of their additional sport needs are not having strong enough advocacy just finally ask a little bit about the outcomes for ASN the Scottish Government produces tables on this and positive destinations are much lower in the category of ASN than they are for the full school population do you think that indicates a failure of policy given that positive destinations will mean different things to different pupils right well we should expect surely all children have positive destinations I mean it's not a very high hurdle to get across in fact the children who don't have positive destinations are virtually disappearing off the radar I mean if you have an activity agreement you're simply obliged to engage with a service for a couple of hours a week or something like that so it's a very grave concern I would say that children with additional support needs in some cases are just disappearing from the system entirely at that point and those children would be the ones from the poor backgrounds who've been identified as having social emotion and behavioural difficulties I've also read that outcomes are improving for children with additional support needs but what isn't added is that as a wider group of children are being counted you would expect that to happen because the category now includes more able children for example so we have to be really careful about saying things are getting better when for some groups clearly not and I think the real concern and through the families that we've engaged with on the investigation reports to a number of whom have taken the step of removing their children from education that they're safe and protected within the school environment and that's not even if that child goes on to achieve really impressively that's the route by which they got that cannot be seen as positive if the parent wanted them to stay in school if the child wanted to stay in school but they've had to remove them whatever the outcome is that's not a positive process to have gone through I just wonder when you raised that point is that a common occurrence through your advice service getting parents in touch about that issue I think it's the number of parents who have been in touch in relation to the investigation report specifically I would say it is fairly common a number of parents have taken that step have made that decision that they're going to withdraw the child from school I couldn't put numbers on it or statistics on it Beth Morrison who many of you will be aware of has done a great deal of work in this area has quite a wide network of parents and families and I think she would have quite a good sense of how many of them have felt that they needed to take that step but we've certainly come across a number of parents who have been so concerned about the experience of their child in school and about the inability to make use of policy and guidance and procedure in order to rectify the problem that they have taken that step What advice do you give them then? The advice really is around access to all you can say is access to complaints procedures is access to the tribunal ultimately potentially access to legal proceedings in order to challenge what's taken place but there are a number of issues around that even in terms of accessibility again that's why we chose to focus the investigation really squarely on that starting point of existence of policy and procedure and guidance and recording so that we can get a sense of how frequently this is happening and so that there's a really clear structure and framework for accountability to take place I think that concludes our questions today and I thank you all for your attendance it's been a very valuable session for the committee and we now move into private session