The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005
| Jurisdiction | Scotland |
| Citation | SSI 2005/514 |
| Year | 2005 |
2005 No. 514
EDUCATION
The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005
Made 19th October 2005
Laid before the Scottish Parliament 21th October 2005
Coming into force 14th November 2005
The Scottish Ministers, in exercise of the powers conferred by section 17(4) and Schedule 1 of the Education (Additional Support for Learning) (Scotland) Act 20041and of all other powers enabling them in that behalf, and after consultation with the Council on Tribunals and its Scottish Committee in accordance with section 8(1) and (3) of the Tribunals and Inquiries Act 19922, hereby make the following rules:
PART I
GENERAL
Citation and Commencement
1. These Rules may be cited as the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2005 and shall come into force on 14th November 2005.
Interpretation
2.—(1) In these Rules, unless the context otherwise requires–
“the Act” means the Education (Additional Support for Learning) (Scotland) Act 2004;
“the appellant” means the person who makes a reference to a Tribunal under section 18 of the Act;
“an appeal committee” means a committee set up under section 28D of the Education (Scotland) Act 19803;
“the authority” means the education authority responsible for the school education of the child or young person;
“case statement period” means the period referred to in rule 8;
“the child or young person” means the child or young person to whom a reference relates;
“convener” means the President or individual selected by the President from the panel (“the panel of conveners”) appointed by the Scottish Ministers under paragraph 3(1)(a) of Schedule 1 to the Act to act as the convener of a Tribunal;
“decision” in relation to a Tribunal includes–
(a) an order, including dismissal of a reference;
(b) a requirement under section 19 of the Act; and
(c) a reference by a Tribunal to an appeal committee under section 19(5)(c) of the Act;
“electronic communication” has the meaning given to it by section 15(1) of the Electronic Communications Act 20004and “electronic signature” has the same meaning as in section 7 of that Act;
“grounds of reference” includes the matters specified in rule 5(2)(f) and (g);
“hearing” means a sitting of a Tribunal for the purpose of enabling the Tribunal to take a decision on a reference or on any question or matter at which the parties are entitled to attend and be heard;
“members” means the individuals selected by the President from the panel (“the panel of members”) appointed by the Scottish Ministers under paragraph 3(1)(b) of Schedule 1 to the Act to act as a member of a Tribunal;
“party” means either the appellant or authority in respect of any reference made to a Tribunal;
“reference” means a reference under section 18(1) of the Act;
“Register” means the Register of References to the Tribunals kept in pursuance of rule 44;
“response” means a written response submitted by an authority under rule 10;
“the Secretary” means the member of the Tribunal staff for the time being appointed to act as secretary to the Tribunals;
“working day” means any day which is not–
(a) a Saturday;
(b) a Sunday;
(c) a day from 27th December to 31st December inclusive;
(d) a day in July; or
(e) a day specified as a bank holiday in Scotland in or by virtue of the Banking and Financial Dealings Act 19715;
(f) “in writing” has the meaning in section 29(5) of the Act; and
(g) “written evidence” includes evidence recorded in any way.
(2) In these Rules–
(a)
(a) a reference to a rule is a reference to a rule in these Rules, and in any rule a reference to a paragraph or sub-paragraph is, unless the context requires otherwise, a reference to a paragraph or sub-paragraph in the rule; and
(b)
(b) where the time prescribed by these Rules for doing any act expires on a day which is not a working day, that act is done in time if it is done on the next working day.
The overriding objective
3.—(1) These Rules are a procedural code with the overriding objective of enabling a Tribunal with the assistance of the parties to deal with references fairly and justly.
(2) Dealing with references fairly and justly includes–
(a)
(a) dealing with the reference in ways which are proportionate to the complexity of the issues and to the resources of the parties;
(b)
(b) seeking informality and flexibility in the proceedings under these Rules;
(c)
(c) ensuring, so far as practicable, that the parties are on an equal footing procedurally and are able to participate fully in the proceedings, including assisting any party in the presentation of his or her case without advocating the course he or she should take;
(d)
(d) using a Tribunal’s special expertise effectively; and
(e)
(e) avoiding delay, so far as compatible with the proper consideration of the issues.
Application by Tribunal of the overriding objective
4.—(1) A Tribunal must seek to give effect to the overriding objective when it–
(a)
(a) exercises any power under these Rules; or
(b)
(b) interprets any rule.
(2) In particular a Tribunal must manage references actively in accordance with the overriding objective.
PART II
START OF PROCEEDINGS
Reference
5.—(1) A reference to a Tribunal shall be made by notice in writing and shall be signed by the appellant.
(2) The reference shall state–
(a)
(a) the name, address and telephone number of the appellant;
(b)
(b) the address to which correspondence should be sent to the appellant if different;
(c)
(c) the name and date of birth of the child or young person;
(d)
(d) the name and address of the authority;
(e)
(e) the date–
(i) on which the authority notified the appellant under sections 11 or 28 of the Act of the right to make a reference to a Tribunal in respect of the decision as referred to in section 18(3)(a), (b), (d)(iv) or (e), or of the information as referred to in section 18(3)(d)(i) which is the subject of the reference; or
(ii) on which the failure as referred to in section 18(3)(c), (d)(ii) or (iii) which is the subject of the reference first occurred;
(f)
(f) the details of the decision, failure or information in respect of which the reference is made;
(g)
(g) the appellant’s reasons for making the reference;
(h)
(h) the main facts on which the appellant intends to rely;
(i)
(i) if the appellant seeks an order that a co-ordinated support plan be amended, the part or parts of the co-ordinated support plan to which the reference relates; and
(j)
(j) the name, address and profession of any representative appointed by the appellant, and, where available, the representative’s telephone number, fax number and electronic address.
(3) Where the child or young person is the subject of a placing request, and whether or not that placing request is the subject of the reference, the reference shall state–
(a)
(a) whether there is an outstanding reference to an appeal committee under paragraph 5 of Schedule 2 to the Act; or
(b)
(b) whether there is an outstanding appeal to the sheriff under paragraph 7 of that Schedule in which case it shall specify the court in which the appeal is proceeding and, if known to the appellant, any case reference number relative to it.
(4) The reference shall be accompanied by–
(a)
(a) a copy of any decision in respect of which the reference is made; and
(b)
(b) where the reference relates to a co-ordinated support plan, a copy of that plan.
(5) Where the reference is in respect of a decision or information as referred to in paragraph 2(e)(i) above the reference shall be sent so as to be received by the Secretary no later than two months from the date on which the authority gave the appellant notice under sections 11 or 28 of the Act of the right to make reference to a Tribunal.
(6) Where the reference is in respect of a failure as referred to in paragraph 2(e)(ii) above the reference shall be sent so as to be received by the Secretary no later than two months from the date on which that failure first occurred.
Action upon receiving a reference
6. On receiving a reference the Secretary shall–
(a) enter the details of such matters specified in rule 5(2) in the Register and such other information as the President may from time to time direct under paragraph 12 of Schedule 1 to the Act;
(b) send a copy of the reference and of any accompanying documents to the authority, together with a notice in writing giving the case number of the reference from the Register, and including information, as appropriate to the matter referred, about the means and time for submission of a response, the consequences of failure to do so, and the right to receive a copy of the decision;
(c) acknowledge receipt and provide the appellant with a notice in writing giving the case number of the reference, and including information as appropriate to the matter referred, about the time for the authority to submit a response, the right to withdraw the reference, and the right to receive a copy of the decision;
(d) where the reference discloses the existence of an appeal to an appeal committee under paragraph 5 of Schedule 2 to the Act in relation to the refusal of a placing request, notify the authority and the appeal committee to that effect; and
(e) where the reference discloses the existence of an appeal to the sheriff under paragraph 7 of that Schedule in relation to a placing request, send a copy to the sheriff clerk of the court in which that appeal is proceeding.
Sufficiency of reasons for reference
7.—(1) If the reference does not state grounds of reference which a convener considers sufficient to enable the authority to respond to it, the convener shall direct the appellant to send further and better particulars of the grounds of reference to the Secretary within 10 working days of the...
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