Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill – The Additional Support Needs Blog

Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill – The Additional Support Needs Blog

The Education, Children and Young People Committee is the lead committee for the Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill, a private member’s Bill, introduced by Pam Duncan-Glancy MSP.

The period for interested parties to submit their views on the Bill to the Committee has recently ended. Here is a summary of my submissions.

The aims of the Bill are to improve both the process and outcomes of the post-school transition for disabled children and young people. This is much needed, and does require serious and considered attention.

The Bill, as set out covers three main big ideas:

  • A National Transitions Strategy;
  • A Scottish Government Minister with special responsibility for transitions; and
  • Transitions plans for every child and young person with a disability.

However, I do think the Bill requires substantial amendment in order to be best placed to achieve its aims.

There are already statutory post-school transition duties in place for children and young people with disabilities (as well as others with additional support needs). These are, at best, inconsistently applied.

It is tempting, therefore, to say that the answer is to apply or enforce the current laws better, rather than to add more laws. In particular, the Code of Practice requires amendment on transitions. It still says “The duties apply to prospective school leavers with additional support needs for those whose school education authority is responsible, but the duties do not apply to all leavers with additional support needs.” Chapter 6, para 38.

This is incorrect, as Sections 12 & 13 categorically do apply to all school leavers with additional support needs. This misstatement is responsible for many children and young people not receiving the transition planning they are legally entitled to.

However, it is also true to say that the legal duties in place at the moment are all about the transition stages before the pupil leaves school. So, the proposals in this Bill do go beyond what the existing law states. Having a transitions plan which extends beyond the school leaving date would undoubtedly be of benefit to disabled school leavers. On balance then, legislative change is required to meet the aims of the Bill.

It is regrettable that the Bill focuses on children and young people with disabilities. While it is understood and well documented the particular difficulties which this group faces, it seems anomalous to exclude the many children and young people whose school education and future chances have been affected by other factors (home circumstances, substance abuse, adverse childhood experiences, homelessness etc) from the protections of the Act.

That is, of course, not a good reason not to extend the protections to disabled school leavers, but it may be worth extending them (either now, or at some future date) to others.

There are specific other duties which apply to looking after post-school children. However, my view is that the better route would be to bring these duties within the existing ASL framework, rather than create another distinct, parallel system.

The Bill overlaps with, but fails to link with existing post-school transitions duties contained in Sections 12 & 13 of the Education (Additional Support for Learning) (Scotland) Act 2004, which are well established (if not always correctly implemented) and supported by a Code of Practice, non-statutory guidance (Principles of Good Transitions 3) and a clear dispute resolution mechanism to the First-tier Tribunal for Scotland (Health and Education Chamber).

The Bill includes an obligation to prepare a transition plan, without any consideration of how such a plan would interact with existing plans, and specifically with any Co-ordinated Support Plan (CSP) in place. The potential for confusion in having two separate plans dealing with transitions under two separate statutory regimes is obvious.

The Health and Education Chamber of the First-tier Tribunal for Scotland already has a jurisdiction in relation to post-school transitions. Rather than creating a new dispute resolution mechanism, it would make sense to have these matters handled by the same body.

The Bill defines “child” as a person under 18, when in all other educational contexts it is 16. I realize that other legislation adopts 18 as an age limit, but 16 makes much more sense in this context. Also defining a child as under 18 raises even more problems with the capacity issues as expressed elsewhere in the Bill.

The definition of disability by reference to Section 6 of the Equality Act 2010 is the correct approach, but it is not a clear dividing line. Using this definition does invite disputes as to whether a particular pupil is, in fact, disabled and therefore entitled to a plan. Any dispute resolution mechanism needs to be equipped to provide a quick and definitive answer to this (complex) question. The Tribunal already deals with questions under the Equality Act 2010 and would be well placed to do so.

Transition from school to post-school life is a critical stage in anyone’s life. Ensure that disabled pupils have the necessary support to navigate that transition can only effect their rights and quality of life for the better.

Whether a National Transitions Strategy will in fact assist disabled young people largely depends on the contents of the strategy. It may be that more locally or regionally based transition strategies would be of more practical use – they could be arranged around education authorities / health board areas / regional college areas, for example?

If a Scottish Minister being in charge of the strategy ensures that the implementation is monitored and enforced, then that can only be a good thing.

A transitions plan would no doubt be of use for many disabled pupils during a post-school transition. Whether a statutory requirement to prepare a detailed ten year plan for every disabled child and young person is required is perhaps another question. A system where by a plan can be requested and/or subject to set criteria, like a Co-ordinated Support Plan (CSP) or Education, Health and Care Plan (EHCP), might be better – and involve less unnecessary administrative burden (for all sides).

For suitable cases, a written, child-centred, objective-driven, multi-agency plan would be useful in bringing a focus to discussions and ensuring that all agencies are working towards the same goals. The ability to enforce a plan would undoubtedly lead to such plans being taken more seriously.

The Bill imposes statutory duties which flow from the transitions plan, which are loosely framed and would require to be made more precise. The obvious rewording would be a requirement to ensure that provision is made by the authority, or arrangements made by the authority for provision, for the child or young person in accordance with the plan or revised plan.

The Bill also sets out the required contents of the plan, which are needs-led. While a plan clearly needs to reflect the needs of the child or young person in question, this structure would inevitably tend towards deficit led discussions. A better model is to start with the transition objectives: where does the young person want to end up? Then the plan can record the provisions needed to achieve those goals – rather than to “address these needs” in the abstract. In fairness, the Bill does later imply that a plan should indeed cover “the outcomes which the plan is intended to achieve” – this needs to be brought front and center.

I think the important thing would be that the person co-ordinating the plan has the necessary time, resources and powers to ensure that it is being properly implemented – and to take action if it is not.

For example, the Code of Practice describes the role of the CSP co-ordinator as follows:

In addition, the co-ordinator should: maintain regular contact with the child or young person and his/her family; be familiar with the school within which the child’s or young person’s needs are met; have a working knowledge of relevant service policies and practices; have experience of working with children and young people with additional support needs; have experience of compiling and implementing educational support plans (eg individualized educational programs) or health and care plans; understand the roles and ways of working of other agencies so that partnership working is seen as a core business; working alongside the child and parents, engage the child’s Named Person as appropriate.

Code of Practice – Chapter 5, para 68

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