SUBMISSION FROM NATIONAL DEAF CHILDREN S SOCIETY. Education (Additional Support for Learning) (Scotland) Bill

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1 SUBMISSION FROM NATIONAL DEAF CHILDREN S SOCIETY Education (Additional Support for Learning) (Scotland) Bill NDCS is the national charity dedicated to creating a world without barriers for deaf children and young people. We represent the interests and campaign for the rights of all deaf children and young people from birth until they reach independence. 2.6 in every 1,000 children are deaf. NDCS estimates that there are around 3,000 deaf children with a severe to profound hearing loss in Scotland today. 1,800 of these will be of school age. There will be many more who have mild to moderate losses. NDCS uses the term deaf in this response to mean any form of permanent or temporary hearing loss. This could be a mild, moderate, severe or profound hearing loss, and could refer to children who communicate orally or through British Sign Language (BSL). We also include children who have a hearing loss in one ear (unilateral deafness). We thank the Committee for the opportunity to share our views on the Amendment Bill. NDCS Scotland is also contributing to a joint evidence paper with partners from the Govan Law Centre and others. We commend that joint submission and its recommendations to the Committee. In this response, NDCS Scotland will focus on specific issues and experiences of deaf children and their families in Scotland in relation to the Additional Support for Learning framework. NDCS Scotland has shared this response with RNID Scotland, who have endorsed our views. 1. Comments on the Education (Additional Support for Learning) (Scotland) Bill - We welcome the increased rights that the Bill as published will give parents of deaf children with Co-ordinated Support Plans (CSPs) in place to make out of authority placing requests and references to the Additional Support Needs Tribunal where they have cause to appeal a refusal. 1.2 However, NDCS Scotland believes that this right should be available to parents not only of those deaf children who have CSPs, but to any deaf child, particularly those with a severe to profound hearing loss. HMIE has identified huge variation in the criteria which local authorities use when issuing CSPs 1, and we believe that many deaf children are not accessing these statutory plans. (See section 2 below for further detail). The Bill does not address this. 1.3 NDCS Scotland believes that access to an independent tribunal should be based on a deaf child s needs, and not on inconsistencies in local authority decision making processes. Most parents of deaf children initially want them to attend schools close to home. It is only when they feel that provision is not 1 HMIE, 2007

2 meeting their child s needs and they feel that limited educational progress is being made that they may seek alternatives out of authority. Where such a request is refused, NDCS Scotland believes that the ASNT should have the power to assess how the deaf child s educational needs are best met. 1.4 NDCS Scotland believes that whilst the proposed Bill is a welcome step forward, it falls short of the full legislative review of the Education (Additional Support for Learning) (Scotland) Act 2004 that was promised in the Scottish Government s Disability Equality Scheme We believe that a wider review of the legislation is required, and expressed this view in our earlier submission to the consultation process. Specifically, we feel that a wider review should consider access to statutory entitlement to support, monitoring pupil progress, transitions, early years support, and information available to parents. 2. Access to CSPs and statutory entitlement to support We believe it is essential that all deaf children be classified as having additional support needs. However, a recent informal survey of deaf children numbers in Scotland revealed that the vast majority of deaf children are not getting access to CSPs, or indeed Individualised Education Plans (IEPs). In one local authority area alone, we have established that whilst there are over 180 deaf children identified as receiving support from the authority, less than a fifth (31) of these deaf children have a CSP or an IEP in place NDCS Scotland is aware of a number of other forms of plans currently in place for deaf children, such as Personal Learning Plans, Additional Support Plans, Individualised Learning Plans, Individualised School Plans, and Coordinated Care Plans 3. None of these have any statutory bearing under the terms of the Additional Support for Learning Act. However, as a statutory plan, a CSP carries with it rights and entitlements for children and their parents. Without a CSP, these legal rights are just not there for the majority of parents of deaf children in Scotland today. 4 CASE STUDY 1: The teachers are wonderful and the whole ethos/environment meets my child's needs exceedingly well. My child is doing very well at school - and a result of this, despite his severe hearing loss we have been told that he doesn't need a CSP or an IEP. We were told that he would need to have additional needs apart from his deafness to get a CSP or IEP. To be honest we haven't pushed this (we have had other battles to fight!) We believe that access to CSPs and the wide variety of alternative nonstatutory plans in existence is an issue that must be discussed at the earliest opportunity, and not just be picked up in a later review of the Code of 2 NDCS Scotland research, NDCS Scotland research, See also HMIE, 2007, p.16 5 Direct quote from parent of deaf child, NDCS Scotland, 2008

3 Practice 6. It is clear that Guidance is not effective in this regard and that legislative intervention may therefore be required. 3. Impact on planning services and monitoring pupil progress. - The Committee will be aware that the annual school pupil census Pupils in Scotland and the SQA Attainment and School Leavers Survey only records the existence and the S4 attainment of those deaf children who have a CSP or an IEP in place. In relation to 2 above, this means that there are almost 150 deaf pupils in one local authority area who are not being picked up by official recording mechanisms 7. The current pupil census records only 905 deaf pupils in Scotland Such gaps in information make it very difficult to monitor how well deaf children are performing, and whether services are effectively meeting need. The following case study demonstrates the impact that this is having on service delivery: CASE STUDY 2: NDCS is aware of a Scottish local authority which is currently looking to cut its Educational Audiologist Service on the basis that the current post holder has only 11 deaf children on the case load, and none under the age of 3. The feeder NHS audiology department reports however that they are currently working with 50 deaf children, some aged under 3, the vast majority of whom would benefit from the interventions of an educational audiologist. 4. Early years - NDCS Scotland believes that the engagement of health and social work agencies in the delivery of early years support under the legislation is another area which requires review. Section 5 of the 2004 Act sets out the circumstances in which the authority has a duty to provide additional support to under 3s (i.e. where the child is disabled and has an additional support for learning need, as agreed between the health board and the authority). Two pages of Chapter 3 9 of the Code of Practice set out further generic guidance for agencies to work together to take this forward. 4.3 This in effect means that local authorities can provide support to the pre-3 age group but are not under a legislative obligation to do so for all children with additional support needs. As with access to CSPs, the decision as to whether a child under 3 has a significant additional support need arising from their disability rests with the local authority concerned. 4.4 Again, this does not necessarily mean that parents of deaf babies and toddlers are not accessing the support they need. But as there is currently no statutory right to early years support, if support is withdrawn or not offered, parents have no legal right to contest this, nor any recourse to the Tribunal. 6 Scottish Government, Analysis Report: Consultation on the Additional Support for Learning Amendment Bill 2008, p3, para 9 7 For further details, see 8 Pupils in Scotland Supporting Children s Learning: Code of Practice, 2005 p inclusive

4 Case Study 3: NDCS Scotland is aware of a 14 month old deaf baby, who is just about to be fitted with a cochlear implant. Since diagnosis, the family has received a visit from a qualified ToD once or twice a fortnight to support their child s development. However, the baby s mum has just discovered that when their current ToD retires later this year, there will be no replacement. The family has no legal right to challenge this, and they are very worried that the impact on their child s development could be severe. 4.5 Early years support for a deaf baby is vital in order to develop access to language and therefore the curriculum in later life. An undiagnosed deaf child aged 3 will have a vocabulary of around 25 words, compared to 700 words for a hearing child of the same age To complement the delivery of the forthcoming Early Years Strategy, NDCS Scotland believes that the statutory requirement to enter the process of establishing additional support for learning needs for a deaf child should not begin only once that child enters pre-school education if it does, then the intended benefits of early intervention following diagnosis at birth could potentially be lost. We believe that this should be a statutory requirement for deaf children, underpinned by reference to the Tribunal and complemented by national standards for multi-agency professionals working with deaf children in the early years in order to inform parents and professionals alike, as already exists in England and Wales This could require sections 18 and 19 of the 2004 Act to be amended to allow reference to the Tribunal to be made where there is a failure to comply with the duties imposed on an authority under Section 5 of that Act; and to give the Tribunal powers to require appropriate action by the authority to rectify that failure. 5. Ensure that authorities comply with their duties to deaf school leavers. Sections 12 and 13 of the 2004 Act provide for transitional planning for school leavers with additional support needs, including those who are deaf. Chapter 5 of the Code of Practice underlines the importance of an effective transition process to post-school provision. However NDCS believes that in many cases, transition planning for deaf children is ineffective, or simply does not happen. 5.2 Deafness is not a learning disability. There is no reason why, with the appropriate support, deaf children should not be achieving on a par with their hearing peers. But lower educational attainment amongst deaf children 12 has a profound ability on their ability to achieve their full potential as an adult. RNID research 13 has found that only 63% of deaf and hard of hearing people are currently employed, compared to 75% of the population as a whole. 10 Yoshinaga-Itano (1998) 11 Developing Early years intervention/support services for deaf children and their families. DfES See results of the Achievements of Deaf Pupils in Scotland project, SSC, Opportunity Blocked: The employment experiences of deaf and hard of hearing people RNID, 2006

5 5.3 At present, there is no mechanism to ensure that the authority complies with their duties to deaf school-leavers. NDCS believes that further legislative change is therefore required. 6. Information available to parents - Whilst Chapter 8 of the Code of Practice accompanying the 2004 Act emphasises the key role of parental involvement in a child s education, NDCS Scotland is aware of many parents of deaf children who have real concerns that they are not involved in decisions made by agencies about their child s education. Worse still, many are not aware of their rights under the 2004 Act. 6.2 NDCS Scotland therefore believes that there is a pressing need for clear, unbiased, fully accessible and impartial information about their rights under the ASL Act and what that means for them and their deaf child. 7. Conclusion - NDCS Scotland welcomes the limited content of the Bill. However, we believe that the current review should go further, particularly around a) greater transparency and consistency in the system, with a strengthening of statutory entitlement and access to data; b) transition arrangements; c) enshrining access to early years support; and d) improved information for parents, to ensure that the framework is getting it right for every deaf child. 20 November 2008