Education (Additional Support for Learning) (Scotland) Act 2004

SCHEDULE 1Additional Support Needs Tribunals for Scotland

(introduced by section 17)

Interpretation

1In this schedule—

• “panel” means a panel referred to in paragraph 3(1),

• “regulations” means regulations made by the Scottish Ministers,

• “Tribunal functions” means the functions which are conferred on a Tribunal by virtue of this Act,

• “Tribunal member” means a member of a panel,

• “Tribunal staff” means the staff provided or appointed under paragraph 9.

The President

2(1)The Scottish Ministers must not appoint an individual under section 17(2) as President unless that individual has such qualifications, training and experience as are prescribed in regulations.

(2)The President may serve as the convener of a Tribunal.

(3)The President’s functions may, if the office of the President is vacant or the President is for any reason unable to act, be exercised by one of the members of the panel referred to in paragraph 3(1)(a) appointed for that purpose by the Scottish Ministers.

(4)Regulations may make provision for the delegation by the President of any of the President’s functions to any member of that panel or any member of the Tribunal staff.

(5)Paragraphs 3(2), 5, 6 and 7 of this schedule apply, with any necessary modifications, to the President as they apply to a Tribunal member.

The panels

3(1)The Scottish Ministers must appoint—

(a)a panel of individuals having such qualifications, training and experience as may be prescribed in regulations each of whom may act as the convener of a Tribunal, and

(b)a panel of individuals having such qualifications, training and experience as may be prescribed in regulations each of whom may act as a member of a Tribunal other than the convener.

(2)An individual is disqualified from appointment as, and from being, a Tribunal member if the individual is—

(a)a member of the Scottish Parliament,

(b)a member of the Scottish Executive or a junior Scottish Minister, or

(c)of such other description as may be prescribed in regulations.

Constitution of Tribunals

4(1)The President must from time to time constitute such number of Tribunals as the President thinks necessary to exercise Tribunal functions.

(2)A Tribunal constituted under sub-paragraph (1) must consist of—

(a)either—

(i)the President, or

(ii)one member selected by the President from the panel referred to in paragraph 3(1)(a),

who is to act as the convener of the Tribunal, and

(b)two other members selected by the President from the panel referred to in paragraph 3(1)(b).

Terms of office

5(1)Each Tribunal member—

(a)holds office for such period (not exceeding 5 years) as is specified in the member’s instrument of appointment,

(b)may at any time resign office by giving notice in writing to the Scottish Ministers,

(c)vacates office on becoming disqualified from being a Tribunal member under paragraph 3(2),

(d)in other respects holds office in accordance with the terms of the member’s instrument of appointment.

(2)A Tribunal member whose period of office (including any period of office following re-appointment under this sub-paragraph) expires under sub-paragraph (1)(a) may be re-appointed by the Scottish Ministers for a further period to the same panel to which the member was last appointed, unless—

(a)the member has declined re-appointment,

(b)the President has recommended to the Scottish Ministers that the member should not be re-appointed and the Scottish Ministers have accepted that recommendation,

(c)since the member was last appointed to the panel, there has been a reduction in the overall number of members of the panel which the Scottish Ministers consider are needed to enable the President to carry out the functions under paragraph 4,

(d)the member has, since the member was last appointed to the panel, failed without reasonable excuse to comply with the terms of the member’s appointment,

(e)the member no longer has the qualifications, training or experience prescribed under paragraph 3(1) for appointment to the panel.

Removal from office

6The Scottish Ministers may remove a Tribunal member from office if the member is unfit for office by reason of inability, neglect of duty or misbehaviour.

Allowances for Tribunal members

7The Scottish Ministers may pay to a Tribunal member such allowances as they may determine.

Administration of Tribunal functions

8(1)The Tribunals constituted under paragraph 4(1) are to sit at such times and in such places as the President may determine.

(2)The President must ensure that Tribunal functions are exercised by those Tribunals efficiently and effectively.

(3)The President may—

(a)give such directions, and

(b)issue such guidance,

as respects the administration of the Tribunals, or any one of them, as appear to the President to be necessary or expedient for the purpose of ensuring that Tribunal functions are exercised efficiently and effectively.

Staff, property and services

9(1)The Scottish Ministers are to provide the President and the Tribunals, or ensure that they are provided, with such property, staff and services as the Scottish Ministers consider are required for the exercise of the functions of the President and Tribunal functions.

(2)Without prejudice to sub-paragraph (1), the Scottish Ministers may appoint such staff for the President and the Tribunals as the Scottish Ministers may determine and on such terms and conditions as the Scottish Ministers may determine.

(3)The Scottish Ministers may pay, or make provision for paying, to or in respect of staff appointed under sub-paragraph (2) such pensions, allowances and gratuities (including by way of compensation for loss of employment) as the Scottish Ministers may determine.

Finance

10The Scottish Ministers are to pay any expenses reasonably incurred by the President or a Tribunal in the exercise of the President’s functions or, as the case may be, Tribunal functions.

Rules of procedure

11(1)The Scottish Ministers must make rules as to the practice and procedure of the Tribunals.

(2)Such rules may, in particular, include provision for or in connection with—

(a)the form and manner in which references to a Tribunal under section 18(1) are to be made,

(b)the time within which such references are to be made,

(c)the withdrawal of references,

(d)the recovery and inspection of documents,

(e)the persons who may appear on behalf of the parties,

(f)the persons who may be present at proceedings alongside any party or witness to support the party or witness,

(g)enabling specified persons other than the parties to appear or be represented in specified circumstances,

(h)requiring specified persons to give notice to other specified persons of specified matters,

(i)the time within which any such notice must be given,

(j)enabling Tribunal proceedings to be conducted in the absence of any member of a Tribunal other than the convener,

(k)enabling any matters that are preliminary or incidental to the determination of proceedings to be determined by the convener of a Tribunal alone or with such other members of the Tribunal as may be specified,

(l)enabling Tribunal proceedings to be held in private,

(m)enabling a Tribunal to exclude any person from attending all or part of Tribunal proceedings,

(n)enabling a Tribunal to impose reporting restrictions in relation to all or part of Tribunal proceedings,

(o)enabling a Tribunal to determine specified matters without holding a hearing,

(p)the recording and publication of decisions and orders of a Tribunal,

(q)enabling a Tribunal to commission medical and other reports in specified circumstances,

(r)requiring a Tribunal to take specified actions, or to determine specified proceedings, within specified periods,

(s)enabling a Tribunal to make an award of expenses,

(t)the taxation or assessment of such expenses.

(3)In sub-paragraph (2), “specified” means specified in the rules.

Practice directions

12The President may give directions as to the practice and procedure to be followed by Tribunals in relation to any matter.

Evidence

13(1)A Tribunal may by citation require any person—

(a)to attend proceedings of the Tribunal, at such time and place as is specified in the citation, for the purposes of giving evidence,

(b)to produce any document in the custody, or under the control of, that person.

(2)A Tribunal may administer oaths to persons giving evidence.

(3)A person is not obliged by virtue of this paragraph to answer any question or produce any document which that person would be entitled to refuse to answer or produce in civil proceedings before the Court of Session.

(4)If a person on whom a citation under sub-paragraph (1) has been served—

(a)fails to attend the Tribunal proceedings as required by the citation,

(b)refuses or fails, whilst attending proceedings as so required, to answer any question,

(c)deliberately alters, conceals or destroys any document which that person is required by the citation to produce,

(d)refuses or fails to produce any such document,

that person is guilty of an offence.

(5)It is a defence for a person charged with an offence under sub-paragraph (4)(a), (b) or (d) to show that the person had a reasonable excuse for the refusal or failure.

(6)A person who commits an offence under sub-paragraph (4) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Decisions of a Tribunal

14(1)A decision of a Tribunal—

(a)may be reached by majority, and

(b)must be recorded in a document which contains a full statement of the facts found by the Tribunal and the reasons for the decision.

(2)The Tribunal must—

(a)inform each party of its decision, and

(b)send a copy of the document mentioned in sub-paragraph (1)(b) to each party as soon as reasonably practicable after it is prepared.

Annual report

15(1)The President must, in respect of each reporting year, prepare a written report as to the exercise of Tribunal functions during that year.

(2)The President must submit each report prepared under sub-paragraph (1), as soon as practicable after the end of the reporting year to which it relates, to the Scottish Ministers.

(3)The Scottish Ministers must lay before the Scottish Parliament a copy of each report submitted to them under sub-paragraph (2).

(4)A reporting year for the purposes of this paragraph is—

(a)the period beginning with the date on which the first President is appointed and ending with 31st March next following that date, and

(b)each successive period of 12 months ending with 31st March.

Disclosure of information

16The President must, at such times and in respect of such periods as regulations may specify, provide to—

(a)the Scottish Ministers, and

(b)such persons as the regulations may specify,

such information relating to the exercise of Tribunal functions as is specified in the regulations.

Allowances etc. for attendance at hearings and preparation of reports

17A Tribunal may pay to any person (other than the President, a Tribunal member or a member of the Tribunal staff)—

(a)such allowances and expenses as the President may determine for the purposes of or in connection with the person’s attendance at hearings of the Tribunal,

(b)such amounts as the President may determine in connection with any report prepared in pursuance of rules made under paragraph 11(2)(q).