Review of additional support for learning implementation: report

Theme 8: Understanding Rights

Children and young people, parents and carers and practitioners all need to be fully informed and supported to understand the implications of relevant rights based legislation, especially as the Scottish Government has committed to the legal incorporation of the United Nations Convention on the Rights of the Child (UNCRC).^[53]

The UNCRC is one of the core United Nations human rights treaties. It sets out the civil, political, economic, social and cultural rights of every child, regardless of their race, religion or abilities.

The UNCRC was a landmark treaty, recognising the importance of childhood and the unique needs of children and young people across the globe. It is unique in setting out how adults and Governments must work together to make sure that all children and young people can enjoy all their rights.

The UK ratified the UNCRC in 1991, but it has still not been incorporated into domestic law, meaning that many of the protections contained within it are not accessible to children and young people in the UK. Currently, schools can choose how they approach recognising and taking action on children's rights. This means that practice can vary widely and young people can have very different experiences. The Review heard that the rights of children and young people were not always well-understood or consistently applied in practice in schools. Parents and carers often independently research rights and act on behalf of their children on the basis of their understanding, which may not be completely accurate.

Incorporating the rights of children and young people, as enshrined in the UNCRC, is fundamental to making children's rights real. The value to children, young people and families in Scotland is that children's rights will be built into law, policy and practice; so all children and young people can benefit from and exercise these rights in their daily lives, which will improve their outcomes and experiences.

Incorporating the UNCRC into domestic law in Scotland will also enable children and young people, and those acting on their behalf, to advance their rights in the Scottish courts. The Scottish Government has committed to incorporating the UNCRC into Scots law before the end of the current Parliamentary session of 2021.

The themes of inclusion, participation and understanding of rights have emerged very strongly as areas that need strengthening to provide a robust rights based framework for implementation of Additional Support for Learning.

The preparation for incorporation should direct and enable planning and action on this for children, young people, their families and professionals as soon as possible, without waiting for the incorporation process itself. Proactive engagement and communication is essential; awareness and understanding of rights must not rely, as at present, on individuals often needing to seek out sources of guidance.

That assumes a degree of awareness to start with, which must not be assumed. The Review heard that many children, young people and their families shared the experience of struggling to find the information they needed, including on children's rights.

Also, it is essential that rights and associated processes for the Additional Support Needs Jurisdiction of the Health and Education Chamber of the First Tier Tribunal (the Tribunal)^[54] should be clear and understood and barriers to access removed. This will allow equality of access for all children and young people, not only those whose parents and carers are strong advocates for them (as commented on under the theme on mainstreaming and inclusion).

It should be noted that, through active consultation, the needs and preferences of the small number of children and young people who engage with the Tribunal, are evident in the detail of the architectural and interior design of the Tribunal offices^[55], and the operational processes developed to reduce stress and distress.

However, whilst it must be an objective to ensure all children and young people access their rights, there must be caution in regarding an increase in numbers accessing the Tribunal as a sign of success.

The focus must remain on recognition of need and delivery of support at the earliest possible point, underpinned by positive relationships and communication between schools, local authorities, children and young people and their families. The breakdown of those relationships is the common feature of the trajectory into adversarial processes, which are distressing for all involved and draw on resources, which may be better applied to direct support to benefit children and young people.

Planning and planning entitlements

Good planning processes are crucially important to ensure that all children and young people receive the support and interventions they need at the right time, from the right people, with that support coordinated, rather than fragmented.

However, the Review has highlighted that good planning requires skills in engagement and communication, which cannot just be assumed of staff who have not had practice development support. As noted earlier in this report, a significant amount of time and effort is currently focused on producing plans, rather than on practice and real change.

The preparation of a plan must be understood for what it is. Not an outcome, but a useful record of discussion and decisions to provide the basis for reviewing the specific support necessary for a child or young person to thrive in their learning. It allows progress to be monitored and individuals or institutions to be held accountable.

Even where excellent processes have underpinned the completion of a plan, that is only the first step. It is in the subsequent cycle of actions, focused on the delivery of support, kept under continuous review and adaptation, that forms the purpose.

Planning and plans should be proportionate to complexity and purpose. Where children and young people can be supported, with minor adaptation and within normal classroom practice, the mind-set of plan implementation and review is important, but a plan will not add value.

For other children and young people, a detailed plan may be necessary. Currently, there are a range of planning formats and frameworks, including Child's Plan and Co-ordinated Support Plans (CSP). The range of plans available is in itself a source of confusion among parents, carers and professionals.

The Review has seen examples of how effective planning and communication, with clear expectations, can lead to positive and sustained outcomes for children and young people. However, the evidence that emerges from the Review is that planning processes, and the language around, them can be overly complicated, time consuming and bureaucratic.

This increases the feeling that children, young people and their families have of being disassociated and excluded from the process, rather than being partners in it.

Some professionals have told the Review of the frustration and burden of time of navigating complicated and overlapping planning processes.

Reiterating the theme of early intervention and prevention, the Review has heard strong testimony from parents and professionals that planning to meet the needs of children and young people should be done at the earliest possible opportunity, with clear guidance and expectations set.

Equally, for it to be meaningful and effective there must be regular and proactive review – when needed, not just when required by legislation. The process must include all those who are involved and play a role in supporting children and young people. Most importantly, children, young people and their families should be at the centre of these discussions and given the support they need to be fully involved and engaged in the process.

Co-ordinated Support Plans (CSPs)

A CSP is a plan that has rights and obligations associated with it, identified by the Additional Support for Learning legislation. Broadly, a CSP is intended to provide the framework for the co-ordination of support, between education and at least one other agency, for children and young people with multiple and complex needs.

The intent of the legislation is not for all children and young people with additional support needs to have a CSP. In fact, the criteria are very narrow. A key issue to consider is that the legislation sets out the conditions that must be met for a CSP to be put in place including that: the child or young person requires 'significant additional support' from the education authority and social work or another appropriate agency.^[56] The impact of austerity on this support has already been noted in the section on resources so there is a risk of need being defined by support provided.

However, the Review evidence is that there is widespread misunderstanding by parents, carers and professionals too, about the purpose, relationship to other planning mechanisms, (usually the Childs Plan), eligibility, or legal entitlement /requirement for a CSP.

For many parents or carers, a CSP is viewed as a gateway to access support, when the support identified within a Childs Plan has not been delivered. Their original frustration and anxiety is then increased when hopes for a CSP are not met. This is fuelled by hope based on conflicting information and misunderstanding.

This issue has been widely raised publicly outwith this process and the Review heard the same themes in many stories: of details of parents' and carers' battles (as commonly described) to access CSPs.

There is guidance available that seeks to provide clarity on the entitlement to CSPs and provide parents and carers with information on their rights to request such a plan.^[57] The evidence heard by the Review confirms that information must be proactively made available and be accessible and visible to all those who need it. Doing so ensures there is a shared understanding about the entitlements and benefits to children and young people of a CSP. It also averts some of the unnecessary friction, stress and damage to relationships that occur when parents and carers believe their child is having an entitlement withheld.

The CSP is a statutory plan; the Child's Plan is not. Parents and carers, understandably, often take the view that a CSP is more effective and provides them more protection, as there is a definitive right of appeal attached.^[58]

Children, young people and their families have the right to appeal decisions about entitlement or content of the CSP to the Tribunal. This appeal process can itself be lengthy and demanding.

Again, a CSP must be viewed as a tool for effective planning, rather than an outcome. The Review has heard the frustration of many families and professionals that the support and interventions agreed as part of the CSP have not been fully implemented or reviewed robustly. This again can lead to disappointment and weariness with the system, although there can be further appeal to the Tribunal.

In May 2019, the Deputy First Minister and Cabinet Secretary for Education and announced that the Scottish Government will review the use of co-ordinated support plans. This is welcome and must be seen as a valuable opportunity to explore these complex issues in greater detail, informed by the broader context for CSPs presented in the themes and conclusions of this Review.

Recommendation 8.1 Rights

• The incorporation of UNCRC and its impacts on Additional Support for Learning legislation and processes, must be fully anticipated and planned for to ensure children’s rights are embedded and effectively underpin the implementation of the Additional Support for Learning legislation.

Recommendation 8.2 Coordinated Support Plan Review

• The planned review of Coordinated Support Plans (CPSs) must take the findings of this Review into account.
• Also, it must consider:
  • planning mechanisms within a whole life perspective for children and young people with lifelong conditions, including transitions between and beyond education settings.
  • clarifying the interaction between CSPs, child’s plans and GIRFEC.
  • the relationship between education and partners in health, social work and other agencies to identify where re-alignment is needed in the preparation and delivery of support.
  • where improvements are needed in the availability and accessibility of information and guidance about planning and its processes for all parents, carers, children and young people.