Ppc/S5/18/19/A Public Petitions Committee

PPC/S5/18/19/A

PUBLIC PETITIONS COMMITTEE

AGENDA

19th Meeting, 2018 (Session 5)

Thursday 20 December 2018

The Committee will meet at 9.30 am in the Sir Alexander Fleming Room (CR3).

1. Decision on taking business in private: The Committee will decide whether to take item 4 in private.

2. Consideration of new petitions: The Committee will consider the following new petitions—

PE1713 by Amy Lee Fraioli MSYP and Kit McCarthy MSYP on behalf of Scottish Youth Parliament on Ban the use of 'Mosquito Devices' in Scotland, and will take evidence from Kit McCarthy MSYP

PE1711 by Stuart Callison on behalf of St Andrew's First Aid on First Aid Training for All Primary School Children in Scotland.

3. Consideration of continued petitions: The Committee will consider the following continued petitions—

PE1652 by Irene Baillie on Abusive and threatening communication; PE1693 by Graeme Harvey on behalf of Lowland Canals Association on Independent Water Ombudsman; PE1701 by Nathan Sparling on Change the law to allow adoption for people over the age of 18; and PE1704 by Duncan MacGillivray on Improve targets and outcomes for autistic people in Scotland.

4. Consideration of a continued petition: The Committee will consider the following continued petition—

The Committee will consider a draft report on petition PE1319 by William Smith and Scott Robertson on Improving youth football in Scotland.

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Sarah Robertson Clerk to the Public Petitions Committee Room T3.40 The Scottish Parliament Edinburgh Tel: 0131 348 5186 Email: [email protected] PPC/S5/18/19/A

The papers for this meeting are as follows—

Agenda item 2

PRIVATE PAPER PPC/S5/18/19/1 (P)

Note by the Clerk PPC/S5/18/19/2

Note by the Clerk PPC/S5/18/19/3

Agenda item 3

Note by the Clerk PPC/S5/18/19/4

Note by the Clerk PPC/S5/18/19/5

Note by the Clerk PPC/S5/18/19/6

Note by the Clerk PPC/S5/18/19/7

Agenda item 4

PRIVATE PAPER PPC/S5/18/19/8 (P)

PPC/S5/18/19/2

Public Petitions Committee

19th Meeting, 2018 (Session 5)

Thursday 20 December 2018

PE1713: Ban the use of Mosquito devices in Scotland

Note by the Clerk

Petitioner Amy Lee Fraioli MSYP and Kit McCarthy MSYP on behalf of the Scottish Youth Parliament

Petition Calling on the Scottish Parliament to urge the Scottish Government to summary ban outright the use of ‘mosquito devices’ in Scotland, in order to uphold children and young people’s rights.

Webpage parliament.scot/GettingInvolved/Petitions/mosquito

Introduction

1. This is a new petition that collected over 163 signatures and six comments in support. The Committee will take evidence from the petitioners at this meeting, and is invited to consider what action it wishes to take.

Background

2. The website of Compound Security Systems (CSS), the manaufacturer of the Mosquito device, describes it as—

“The Mosquito, MK4 otherwise known as an anti-loitering sound device, anti- teenager alarm, teenager repellent or ultrasonic teenage deterrent. Call it what you will, but it is essentially a low power device that makes a pulsing sound similar to an alarm clock. This sound is just out of the range of an adult’s hearing, which is why it only bothers people under the age of about 25. The sound is not loud or painful, just highly annoying after a short period of time.

Over the 10 years since the Mosquito was launched, CSS have sold many many thousands of them worldwide and in 2017 it still continues to be the most effective and safe way to disperse groups of loitering teens from locations they are not welcome.”

3. The petition argues that the use of such devices is discriminatory and violates the rights of children and young people.

4. The petition highlights research published in January 2018. It reported on a survey, commissioned by the Scottish Government, to gather evidence on young people’s experiences and views of Mosquito devices. The findings are based on 725 responses (not necessarily representative of all young people in Scotland). The research report includes the following summary of findings—

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• Most of the young people surveyed had not heard of Mosquito devices prior to undertaking the survey. 15% of them had encountered one personally, and 85% had not encountered one • These devices appear to be found across Scotland and a wide range of locations. There were also some reports of devices in other parts of the UK and abroad • 41% of respondents experienced health effects or discomfort from encountering a device • 85% of respondents found the devices to be annoying • The devices have a limited impact in preventing respondents from gathering in a particular area. Respondents did not perceive the devices to be effective in deterring other young people from loitering • Respondents expressed a wide range of views about these devices, in addition to those mentioned already. Not all respondents were sure about how the devices made them feel or about their personal views on them. Some were positive, believing the devices made them safer through deterring anti-social behaviour. Others were negative – for example, some expressed that these devices are discriminatory and made them feel unwelcome in their communities. (p3)

Scottiah Parliament and Scottish Government Action

5. In 2010, another petition (PE1367) was lodged on behalf of the Scottish Youth Parliament seeking a ban on the use of Mosquito devices. It was first considered by the Public Petitions Committee at its meeting on 29 October 2010.

6. The Committee considered a range of evidence, both written and oral, on that petition. The Scottish Government’s position at that time was summarised in a letter of 13 December 2012 from the then Minister for Children and Young People.

7. On 30 April 2013, the Committee decided to close the petition on the basis that the Scottish Government had set out why it did not intend to legislate at that time.

8. More recently, in response to a parliamentary question (S5O-01257), the then Minister for Community Saftey and Legal Affairs stated—

“The Scottish Government is opposed to the use of Mosquito antiloitering devices. Their use is not consistent with our approach to tackling antisocial behaviour, and we note that the United Nations Committee on the Rights of

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the Child has expressed concerns over their use and children’s right to freedom of movement and peaceful assembly.”1

9. She added that—

“I have written to all local authorities and to other public bodies including Transport Scotland, Police Scotland and the Convention of Scottish Local Authorities to emphasise the Government’s opposition to the use of Mosquito devices. I have asked for information on their policies on Mosquito devices and I await their replies.

I am not unsympathetic to those who take the view that we should consider an outright ban on Mosquito devices, but at present, there are no reliable figures on how widespread use of the devices is in Scotland. To proceed successfully down a legislative route, we would need to show that legislation was justified as a proportionate response. We will continue to work on that and to ingather all the available information.”

Conclusion

10. The Committee is invited to consider what action it wishes to take. Options include—

• To write to the Scottish Government, Police Scotland and COSLA to seek their respective views on the action called for in the petition.

• To take any other action the Committee considers appropriate.

SPICe/Clerk to the Committee

1 Meeting of the Parliament, 20 September 2017. Official Report, col 6.

PE1713: Ban the use of ‘Mosquito Devices’ in Scotland Petitioner Amy Lee Fraioli MSYP and Kit McCarthy MSYP on behalf of Scottish Youth Parliament Date 6 December 2018 Lodged Petition Calling on the Scottish Parliament to urge the Scottish Government to summary ban outright the use of ‘mosquito devices’ in Scotland, in order to uphold children and young people’s rights. Previous Lodged a petition (PE1367) on this issue in 2010. action Have continued to raise concerns directly with the Scottish Government, MSPs and local councillors.

Have also discussed this issue with the Children and Young People's Commissioner Scotland, and with ScotRail Background The use of mosquito devices as a method of dispersing groups of information children and young people continues in communities around Scotland. This is discriminatory and violates the rights of children and young people, particularly the right to peaceful assembly (also Articles 2, 3, 15, 19 and 31 of the United Nation Convention on the Rights of the Child and Articles 3, 8, 11 and 14 of the European Convention on Human Rights, protected by the Human Rights Act 1998 in the UK). Understanding the true prevalence of these devices can be difficult as public bodies are often not aware of their use by private businesses or properties.

However, new research commissioned by the Scottish Government, the Scottish Youth Parliament and Young Scot, published in January 2018 (i), highlights that the devices were found at bus stations, outside shops, in town centres, outside schools and outside private residences in Scotland.

Four out of ten young people experienced health effects or discomfort from encountering a device. The study also found the devices had a ‘limited impact’ in preventing young people from gathering with survey respondents saying they "did not perceive the devices to be effective" in deterring other young people from loitering.

When the young people were asked to outline what physical and mental effects they experienced, 68% said they suffered headaches and migraines while 48% said they endured earache and tinnitus. Other effects included experiencing dizziness, nausea, anxiety and panic attacks.

The United Nations Committee on the Rights of the Child has repeatedly called for a ban on the use of mosquito devices, most recently in 2016 (ii). In 2010, the Council of Europe’s Parliamentary Assembly recommended the devices be banned in all 47 member states (iii). The Children & Young People’s Commissioner Scotland support SYP in its call for a ban. Please see their position statement with more evidence (iv). Together (Scotland’s Alliance for Children’s Rights) also support SYP in this call and evidence the views of young people that these devices fail to tackle the root cause of anti-social behaviour in its State of Children’s Rights Report (v).

The Scottish Youth Parliament has been campaigning for an outright ban since 2010 (vi), and will continue to do so. The SYP Policy passed by the membership on 31 October 2010, which has been renewed by the Conveners Group three times until present, most recently on 21 April 2018, is as follows:

‘The ‘Mosquito’, a device that makes an unpleasant high-pitched noise that only those under 25 can hear, should be banned.’ (66.76% agreement).

In 2017, MSYPs submitted Freedom of Information (FOI) requests to all local authorities regarding the use of mosquito devices (vii). Since collecting this data, SYP has lobbied local authorities in Scotland to remove devices which were flagged in the FOIs and various successes have since been made. For example, devices have been removed in Fife Council, which is also considering a total ban (viii), and Perth and Kinross Council have also committed to removing all devices (ix).

Concerns were raised again by SYP after a device was discovered at Hamilton train station by the SYP Chair, Amy Lee Fraioli MSYP, in July 2017. Amy Lee tweeted about the devices, which resulted in widespread media coverage on the use of these devices. After SYP campaigned for its removal and attended a meeting with ScotRail officials, ScotRail has banned the devices in all train stations across its network (x). However, many local authorities are still to take actions to ban the devices and there are frequent reports from young people that devices are still being used across Scotland, particularly in schools. (xi)

In July 2018, the Department of Justice in Ireland advised that use of anti-loitering devices may constitute ‘assault’ and that all concerns about the devices should be reported to the Garda. (xii)

The harmful effect of these devices is exacerbated when experienced by groups of young people with protected characteristics under the Equality Act 2010, including autistic young people, and even younger children.

The National Autistic Society is opposed to their use, due to concerns about their impact on people with autism. Jenny Paterson, director of The National Autistic Society Scotland, said: “Many autistic people have very sensitive hearing, experience sensory challenges and struggle with social anxiety. As well as being painful to hear, the sudden, high-pitched buzz of the ‘mosquito device’ could further increase the social isolation we know autistic people face by making them feel unable to access the public spaces that many of us take for granted.” (xiii)

The German Federal Institute for Occupational Safety and Health (xiv) stated in a report on The Mosquito, entitled "Use of ultrasonic noise channels not entirely safe’. (xv)

The auditors found that: ‘Small children and infants are especially at risk, due to lengthy exposure to the sound, because the adults themselves do not perceive the noise. Moreover, the ultrasound (xvi) affects not only hearing. Disruption of the equilibrium senses, as well as other extra-aural effects are well known. With the sound levels that can be reached by the device, the onset of dizziness, headache, nausea and impairment is to be expected. This is not the limit of the total risks to safety and health.’

An outright ban of mosquito devices by the Scottish Government is essential to ensure children and young people’s rights are no longer being violated on a daily basis. There is now an expanse of well- founded research from a variety of sources to back this call, as well as international recommendations from the United Nations and the Council of Europe to institute a ban, dating back eight years.

With these devices starting to be banned at a local level, and recommendations for bans existing at international level, the Committee and the Scottish Parliament need to pressure the Government to act now and ban these devices nationally in a binding, not guiding, way. In order to be a world leader in human rights protection, and the best place in the world to grow up - these devices need to be banned for good, Right Here, Right Now.

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Public Petitions Committee

19th Meeting, 2018 (Session 5)

Thursday 20 December 2018

PE1711: First Aid Training for all Primary School Children in Scotland

Note by the Clerk

Petitioner Stuart Callison on behalf of St Andrew’s First Aid

Petition Calling on the Scottish Parliament to urge the Scottish Government to summary 1. Ensure that all primary schools in Scotland incorporate basic first aid as an integral part of their curriculum; and

2. Provide funding in order to develop high quality teaching materials on what to do in common emergencies, as well as to establish training and support for teachers to enable them to deliver these skills during short, interactive first aid workshops.

Webpage parliament.scot/GettingInvolved/Petitions/firstaidprimaryschools

Introduction

1. This is a new petition that collected 675 signatures and 54 comments in support. The Committee is invited to consider what action it wishes to take.

Background

2. The petitioner asks that the Scottish Government ensure that First Aid is part of the curriculum in primary schools. There is almost no statutory curriculum in Scotland. The exceptions are that Gaelic must be taught in Gaelic speaking areas (Education (Scotland) Act 1980 (s1(5)(a) iii) and religious instruction will normally be expected to be provided (Education (Scotland) Act 1980 s8(i)).

3. While the curriculum is not based upon legislation and is intended to allow for autonomy at classroom, school and local authority levels, the Scottish Government provides the overall policy framework for Scottish education.

4. The Curriculum for Excellence (“CfE”) is a “framework of national expectations” and provides teachers “scope and space for professional decisions about what and how they should teach”.1 Health and Wellbeing is one of the eight “Curriculum Areas”. In August 2016, the then Chief Inspector of Education and Chief Executive of Education Scotland, Dr Bill Maxwell, published A Statement for Practitioners, which identified a key focus of CfE as “ensuring the best

1 Building the Curriculum 1 (p1)

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possible progression … in health and wellbeing for every child and young person”.

5. Education Scotland has worked with Save a life for Scotland and published a learning resource “to support the teaching of CPR across all ages and stages”.

6. Teachers in Scotland are required to register with the General Teaching Council Scotland. Teachers must have completed initial teacher education (e.g. a BEd or PGDE or equivalent) and engage in professional learning through their careers.

7. Continuing professional development (“CPD”) can be provided from a number of sources. In practice, the local authority as the employer provides or funds much of teachers’ continuing professional development. Professional development may take place during in-service days. The local authority may need to provide cover should a teacher take part in CPD during term time.

8. The Scottish Government has agreed to fund CPD in other areas. For example, the Cabinet Secretary for Education and Skills announced on 8 November 2018 that the Government would fund “LGBTI training that is accessible to all teachers and school staff in Scotland” as part of a package of measures to support all state schools to teach LGBTI equality and inclusion.2

Scottish Government Action

9. St Andrew’s First Aid raised this issue in November 2016. A BBC report quoted a Scottish Government spokesperson who said—

“We recognise how important it is that children and young people are able to positively engage with health and wellbeing issues at school. Being trained in first aid can help young people develop the skills they may need in an emergency situation. Under Curriculum for Excellence, schools already have the flexibility to provide first aid training. It is up to individual schools and local authorities to decide if, and how best, to deliver this.”

10. The Scottish Government published Out-of-Hospital Cardiac Arrest: A Strategy for Scotland in 2015. This is a “5 year plan with the aim of [saving] an additional 1,000 lives by 2020”. The Strategy highlighted experience from Denmark where an increase in the rates of bystanders giving CPR “was achieved after a range of measures including mandatory resuscitation training in schools” (p12).

11. The Stratgey aims for an improved public response to incidents of cardiac arrests and includes the ambition that “training in the use of CPR is more readily available through schools, work places and voluntary groups”. (p21)

Scottish Parliament Action

2 Scottish Parliament. Official Report 8 November 2018 (col. 56)

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12. On 27 November 2013, the Scottish Parliament held a Members’ Business debate on a motion lodged by James Dornan MSP which congratulated St Andrew’s First Aid on its campaign, “First Aid? Count Me In”.

13. Another Members’ Business debate took place on 30 January 2018 on a motion lodged by Johann Lamont MSP. That motion also referenced St Andrew’s First Aid and highlighted its work which showed that there is a shortage of first aid skills in areas of deprivation.

Conclusion

14. The Committee is invited to consider what action it wishes to take. Options include—

• To write to the Scottish Government and local authorities, inviting their views on the action called for in the petition.

• To take any other action the Committee considers appropriate.

SPICe/Clerk to the Committee

PE01711: First Aid Training for All Primary School Children in Scotland Petitioner Stuart Callison on behalf of St Andrew's First Aid

Date 6 December 2018 Lodged Petition Calling on the Scottish Parliament to urge the Scottish Government to summary 1. Ensure that all primary schools in Scotland incorporate basic first aid as an integral part of their curriculum; and

Previous I have spoken to local authorities, councillors, MPs and also an MSP. action I have also spoken to the children’s commissioner.

Background Who we are information St Andrew’s First Aid has been active for almost 150 years and is Scotland’s only dedicated first aid charity. Established in 1882, St Andrew’s First Aid set up the world’s first ambulance service, and as one of the three Voluntary Aid Societies (with the British Red Cross and St John Ambulance, originally recognised for their work in support of British troops in World War One) help to write the UK’s definitive First Aid Manual. Every year we train thousands of people in life-saving skills and our volunteers and staff are trained to the highest standard.

What we want to do

We want to see the day when no one dies or suffers because they needed first aid and didn’t get it. We want to teach young people who might not otherwise have access to first aid training how to save lives, enabling them to be responsible citizens and effective contributors to society. We also want to sow the seed of community and personal resilience and wellbeing, and tackle health inequalities, and in turn reduce the burden on the NHS.

First aid is not part of the school curriculum in Scotland and therefore it is down to each individual authority whether or not these life-saving skills are taught to pupils. In the UK as a whole only 5% of people have first aid training, while areas of deprivation and poverty in Scotland have higher death rates and lower life expectancy and first aid training is often low on the list of priorities due to the cost involved. If children and young adults are equipped with these skills at an early age and within school they will become lifelong advocates of first aid and make a huge difference within their families and their local community. Whilst we very much welcome recent initiatives in Glasgow and elsewhere to introduce CPR training in schools, they address only one aspect of emergency life support and not the wider range of skills needed.

How we want to do it

Our goal in the first instance is to ensure that all state primary schools in Scotland incorporate basic first aid as an integral part of their curriculum, providing high quality teaching materials on what to do in common emergencies as well as direct training and support for teachers to enable them to deliver these skills as part of their praxis, cascading first aid knowledge to their pupils during short, interactive first aid workshops. The initial focus should be on delivering to schools in Education Authorities with high levels of deprivation as measured by the SIMD and thereafter to roll the programme out to other Council areas.

Several European Governments, notably Italy and Germany, mandate at least two hours of first aid training a year, but despite regular calls to follow suit, the UK Government has consistently rejected this. The situation is further complicated in Scotland by the devolved nature of responsibility for the Curriculum for Excellence, in that thirty two local education authorities would need to be persuaded of the merits of the case. However, European experience has in any event noticed that the curriculum on paper is not necessarily the curriculum in practice. In other words without enthusing and encouraging teachers and supporting them to deliver training, the benefits sought from mandatory learning will be hard to deliver. Rather than join the calls for compulsion, our proposals are designed to work with staff and make teaching first aid as easy as possible.

The Scottish Government should also incorporate peer support modules to enable the pupils to become leaders within their school and assist with the workshop delivery.

Creating peer facilitators among school First Aiders will empower them with the skills to transfer knowledge to their peers within their school environment. The long term plan would be that the school becomes self-sustainable in its delivery of workshops. This will include working with support staff to assist in the delivery of further peer facilitation courses to suitable pupils so that the school becomes self-sufficient in delivering first aid awareness sessions. Once again, recent (2016) research by the Copenhagen Academy for Medical Education found that there was no difference in the quality of first aid training being provided by those young people who had learned from peers in this way.

What are the potential benefits of the project? There is ample evidence from European experience that there are significant advantages to teaching first aid to primary school age children. They tend to be more open to learning the skills involved and the response to first aid training is better in that starting early appears to lead to a higher level of competence later on. Children as young as nine and ten were able to perform basic life-saving skills, and their knowledge retention after three months was found to be good (Source: European Resuscitation Council).

Danish experience found that there was no benefit in using medical personnel or First Aiders to teach in schools: teaching staff were better able to integrate the skills required into the broader curriculum, and this helped to reduce costs and scheduling problems.

In the Pavia district of Italy, researchers found that teaching CPR in schools improved the rate of bystander intervention in the surrounding city and neighbourhoods by 12 to 13% compared with the province as a whole (where training in schools was not offered). In other words, children tended to go home and show parents and siblings what to do. So these skills will not only make the school environment a safe and knowledgeable place for the young people to learn but will also encourage them to help in their communities and keep their family and friends safe.

For several years, St Andrew’s First Aid has run a successful first aid schools programme - BandAge - in areas of multiple deprivation in Glasgow. The most recent project evaluation reported that most of the participants felt unprepared and scared to administer first aid before receiving training, rating their skills at just 2 out of 10. After completing training, the average rating rose to 9 out of 10, with the young people reporting not only that they now felt confident of delivering first aid in an emergency, but of feeling responsible and important as a result:

“We are learning to save lives here, and it could be your life we save next”;

“We don’t get this training in normal school time and I don’t think we can get it anywhere else really, so who is going to help when we grow up? It should be every school, and every pupil, who gets the chance to do this.”

The peer element of the suggested programme can equip participants with key life and employability skills and will be especially advantageous to those pupils who will not follow traditional educational routes. This part of the project will also allow the skills learnt by pupils to be sustainable, as peer facilitators will be able to share the skills they have learnt with other peer groups, and reinforces the core ACE (A Curriculum for Excellence) capacities: confident individual, successful learner, responsible citizen and effective contributor. Government support will not only teach first aid skills but also empower pupils to have more confidence and improve their CV. First aid is a practical skill which can be learned by everybody.

Within St Andrew’s First Aid we have a section of our organisation which caters for 8 to 11 year olds called the Thistles. By the time they are ready to leave this age group, they are all fully competent in all aspects of emergency first aid.

Resource requirements

To deliver the project to every school in Scotland would cost in the region of £543,000 per year - just £1.36 per pupil - falling to around £200,000 in years two and three. Although these clearly represent good value for money, there is obviously scope to reduce the programme costs by concentrating on those areas with the worst health and wellbeing outcomes. For example, to deliver a pilot programme in Glasgow and the West of Scotland would cost around £92,000 in year one.

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Public Petitions Committee

19th Meeting, 2018 (Session 5)

Thursday 20 December 2018

PE1652: Abusive and threatening communication

Note by the Clerk

Petitioner Irene Baillie

Petition Calling on the Scottish Parliament to urge the Scottish Government to summary review the operation of the law in relation to abusive and threatening communication.

Webpage http://parliament.scot/GettingInvolved/Petitions/PE01652

Introduction

1. This is a continued petition. The Committee last considered the petition at its meeting on 9 November 2017.

2. At that meeting, the Committee noted that Police Scotland and the Crown Office and Procurator Fiscal Service had highlighted that the main challenge that exists in enforcing abusive and threatening communication offences is proving “beyond reasonable doubt” who sent an abusive or threatening communication.

3. The petition suggests that it would be easier to enforce such offences if it is set out in law that the owner of a mobile phone is responsible for any communication sent using the device. The responses received highlighted a number of practical difficulties with that approach.

4. The Committee asked the Scottish Government what action it was taking to review the operation of corroboration in the context of hate crime. The Government said that it was in the process of commissioning jury research and that any future consideration of corroboration reform would need to await the findings of that research. The Government had also commissioned an independent review of laws covering hate crime offences in Scotland, to ensure that they are fit for purpose.

5. The Committee agreed to defer further consideration of the petition until that Review of Hate Crime Legislation had concluded and its recommendations published.

Corroboration

6. In its response of 12 July 2017, the Scottish Government said—

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“The Scottish Government is taking forward this recommendation and the commissioning of Jury Research is subject to a formal procurement process. The Jury Research is likely to take 2 years once it begins. Future consideration of corroboration reform needs to await the findings of that research and be considered in the wider context of that and the other recommendations of Lord Bonomy's group and any other related reforms.”

7. This implies that any research findings will not be available until, at the earliest, later in 2019.

Independent Review of Hate Crime Legislation

8. In his report, Lord Bracadale did not specifically refer to mobile phone communication, however, in relation to online activity, he said—

6.33. Two consultation responses specifically highlighted difficulties posed in proceeding with a prosecution in their case because of the technology used to commit the offence. They highlighted the difficulties in proving who had actually sent the message in question and felt that the requirement for corroboration in Scotland posed particular challenges.

6.34. As a general rule, no person may be convicted of a criminal offence in Scotland in the absence of corroborated evidence. This means that there must be at least two sources of evidence in respect of each essential element of the crime. Scottish Ministers have considered abolishing the requirement of corroboration, and commissioned Lord Bonomy to carry out a review of the safeguards that might need to be put in place if this were to happen. Lord Bonomy and his reference group reported in April 20158. The question of whether corroboration should be abolished generally, and whether any safeguards would be needed if that were to happen, is currently with Ministers.

6.35. I have not identified any element of hate crime offending which would justify a different approach to the question of corroboration in this context when compared with any other offence…While I recognise the practical challenges of establishing appropriate evidence in online cases, I am not persuaded that any change to the legislation is appropriate here.

9. In the Executive Summary to the report, Lord Bracadale commented—

It will be a matter for the Scottish Ministers to decide whether to accept all or any of my recommendations.

Independent review of hate crime legislation in Scotland

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10. The report was published on 31 May 2018—

https://www.gov.scot/publications/independent-review-hate-crime- legislation-scotland-final-report/

11. A debate was held in the Parliament on 7 June 2018—

https://www.scottishparliament.tv/meeting/debate-lord-bracadales- independent-review-of-hate-crime-legislation-without-motion-june-7- 2018

12. During the debate, the Minister for Community Safety and Legal Affairs (Annabelle Ewing) said—

“…legislation in and of itself is not the solution to these issues…”(column 59)

13. The Minister went on to announce further action on the part of the Scottish Government—

“We will therefore use the recommendations as a basis for wider engagement and discussion with a view to proceeding with a consultation in due course.” (column 61)

Scottish Government Action

14. The current consultation, referred to by the Minister during the debate, was launched in November 2018. It closes on 24 February 2019—

https://consult.gov.scot/hate-crime/consultation-on-scottish-hate-crime- legislation/

15. The consultation asks questions on Scotland’s approach to consolidating all Scottish hate crime legislation and expanding the statutory aggravations.

Conclusion

16. The Committee is invited to consider what action it wishes to take. Options include—

• To invite the petitioner to comment on the final report of the Independent review of hate crime legislation in Scotland.

• To write to the Scottish Government to seek information on whether the conclusions in the Bracadale review address the call for action in the petition, and if not, whether there is any action it may consider taking to address this.

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• Close the petition on the basis that the Scottish Government is continuing to consult in this area and with a view to encouraging the petitioner to engage with the ongoing consultation.

• To take any other action the Committee considers appropriate.

Clerk to the Committee

PE1652: Abusive and threatening communication Petitioner Irene Baillie Date 24 May 2017 Lodged Petition Calling on the Scottish Parliament to urge the Scottish Government to summary review the operation of the law in relation to abusive and threatening communication. Previous I have spoken to Liam Kerr (MSP) who has directed my request for action assistance with this issue to Miles Briggs (MSP). I am currently waiting on contact from Mr Briggs to discuss this issue further.

I have also spoken to the Procurator Fiscal regarding this issue. Background I am asking the Scottish Government to review the operation of the information law, particularly in relation to text messaging, to see what improvements can be made to make it more enforceable.

In England, my understanding is that if an individual sends a threatening and/or abusive text message from a device registered to them, then charges can be brought against them, with the police only needing one form of evidence.

In Scotland, however, the device that sends the text message not only needs to be registered to the individual but it also needs to be proven that the owner of the device sent the message themselves. The difficulty in enforcing the existing law in Scotland is compounded by the fact that two forms of corroborating evidence is required. It is my understanding that the person who allegedly sent the text needs to (basically) admit to sending the message before any charges can be brought.

Scottish law needs to be amended to ensure that if a threatening/abusive message is sent from a device registered to a person then charges can be brought against them accordingly. I believe that making people responsible for messages sent from their devices would ensure this is the case, but a thorough review of the operation of the law is required to find a suitable solution.

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Public Petitions Committee

19th Meeting, 2018 (Session 5)

Thursday 20 December 2018

PE1693: Independent Water Ombudsman

Note by the Clerk

Petitioner Graeme Harvey on behalf of Lowland Canals Association

Petition Calling on the Scottish Parliament to urge the Scottish Government to summary establish an independent water ombudsmen to—

• safeguard the interests of waterway users • review and arbitrate on disputes with Scottish Canals • ensure that navigation along the full length of the lowland canals is maintained for the benefit of future generations.

Webpage http://parliament.scot/GettingInvolved/Petitions/waterombudsman

Introduction

1. This is a continued petition. The Committee considered the petition at its meeting on 27 September 2018. At that meeting, the Committee agreed to write to—

• the Cabinet Secretary for Transport, Infrastructure and Connectivity; • Scottish Canals; • the Scottish Public Services Ombudsman; • Scottish Waterways Trust; • the Royal Yachting Association; • the Canal & River Trust; • the Inland Waterways Association; and • Audit Scotland

for views on the action called for in the petition and responses to the evidence heard during the meeting. Responses received are shown in links at the end of this paper.

The Convener: We need to explore the policy failure that has driven people to think that the only solution is to have an independent ombudsman who will uphold their rights and listen to their concerns. Why is that being asked for? Why are the other things not being done? Why is there no constraint on charging? Where is there not a focus on maintenance? Why is Scottish Canals able to diversify its business and not do its core business, which is what it feels to me is the suggestion? Why would you

PPC/S5/18/19/5 call yourself “Scottish Canals” and then not allow the canals to be open for a year? The spirit of the petition is that the panel has identified a problem and thinks that an independent ombudsman might be the solution to that, and that is what we are going to explore

Asset management and diversification or regeneration projects

2. In giving evidence to the Committee, Graeme Harvey of the Lowland Canals Association, said—

”we have become greatly concerned that the management of Scottish Canals has been using its profits from property and so on for regeneration projects rather than the maintenance of the waterways.”

3. Scottish Canals replied, in its submission, saying—

“To support the limited gift in aid provided by Scottish Government, Scottish Canals are committed to generating new income streams that will develop the canal corridor and raise additional revenue streams, which can contribute to the maintenance of the canals and operational running costs…”

4. The Royal Yachting Association (RYA) Scotland commented—

“We have previously publicly stated our concerns that the strategic direction of Scottish Canals is diverging from their statutory obligations given they cite the “changing nature of our business from a canal body to an increasingly leisure related business.””

5. RYA Scotland was also critical of Scottish Canals’ level of consultation with key stakeholders saying it has “fallen short of national standards”.

6. The Inland Waterways Association was also critical of the strategy and the perceived vision of Scottish Canals, comparing the strategy of Scottish Canals to the Canal & River Trust—

“In contrast to Scottish Canals’ Asset Management Strategy, the equivalent document produced by Canal & River Trust takes an approach based on how they will improve asset conditions over the next 5 year…This is a very different approach from Scottish Canals, where there seems to be assumption that waterways could be closed, with their document setting out a strategy for a planned closure and abdicating all responsibility for maintaining navigation.”

7. In its response, Audit Scotland explained that “When Scottish Canals was created it inherited a legacy fund of £10 million from the British Waterways Board, which it has invested in various longer term regeneration projects” and stated that the Scottish Canals 2017/18 external audit annual report did not highlight any risks in respect of how Scottish Canals fulfils its statutory functions. It added—

PPC/S5/18/19/5

“Although the 2017/18 audit report did not identify risks in respect of the extent to which Scottish Canals is currently fulfilling its statutory duties, it did highlight areas of future risk around maintenance of the canal infrastructure, longer term investment in the canal assets, and how Scottish Canal’s asset planning links to longer term financial planning. The auditor plans to consider these potential risks further in the 2018/19 external audit, alongside how Scottish Canals continues to fulfil its statutory obligations and future plans for Joint Ventures…”

8. In addressing concerns about the funding and the asset management strategy, the Cabinet Secretary for Transport, Infrastructure and Connectivity said—

“…the grant in aid funding to Scottish Canals was increased from £10 million in 2016/17 to £11.1 million in 2017/18 and to £11.6 million in 2018/19, with a substantial increase of 75% in capital grant in aid funding from £2 million in 2016/17 to £3.5 million in 2018/19. Additional funding of £1.295 million was made available in 2017/18 and an additional £1.625 million has been made available in 2018/19 to enable work to be undertaken to repair the harbour at Ardrishaig and bridges on the Forth and Clyde Canal at Bonnybridge and Twechar. Further funding is also being made available to Scottish Canals to undertake works at Fort Augustus to address the issues that the petitioners mentioned when they gave evidence.”

9. The Cabinet Secretary went on to explain—

“Scottish Canals has been investing in commercial assets, including housing, in order to provide sustainable future income for the maintenance of the canal network. Scottish Government Grant in Aid cannot be used for commercial investments. Scottish Canals are currently undertaking work that will help demonstrate more widely how the returns on the investments, both capital returns and ongoing revenue, are returned to contribute to the operation and maintenance of the core canal network. This will help further clarify that the wider activity undertaken by Scottish Canals is in support of, rather than in spite of, ensuring the Canals are there for future generations.”

Maintenance issues

10. Scottish Canals responded to the petitioners views on the lack of maintenance saying—

“…the canals are circa 250 years old, and are working heritage assets, which are under constant wear and tear from increased usage and pressure from climate change…Each canal requires considerable investment to maintain and, due to the increasing pressure on public finances, there is a repair backlog of £70m. We are currently addressing major works which have restricted navigation on the

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Caledonian and Forth & Clyde Canals in recent months and are keenly aware of the frustration this has caused…”

11. The Inland Waterways Association said that it “supports Scottish Canals’ view, outlined in their Asset Management Strategy, that an extra £11m capital funding is required in the 2019-20 budget.”

12. The Royal Yachting Association Scotland echoed the call for further investment saying—

“We believe the fundamental issue for Scotland’s canals is the lack of sufficient Government funding for Scottish Canals to execute their remit in full and to meet the statutory requirements referred to in Petition PE1693.” “It is our opinion that Scotland’s Canals are close to the tipping point at which the successful regeneration achieved over many years is at risk of collapse and the £98M of public money invested in the Millennium Link Project, wasted.”

13. RYA Scotland added—

“The current investment levels from the Scottish Government and the self-generated income of Scottish Canals are wholly insufficient to address the maintenance needs of a national asset which is approaching 250 years old. An independent ombudsman cannot compel the Government to increase funding or generate any other forms of support for public services and while it may provide a platform for issues to be investigated the options to influence change are likely to be limited until this fundamental lack of funding can be addressed.”

Charging regime

14. The Scottish Public Service Ombudsman advises that since 2012 it has investigated one complaint about charges. The published report on the complaint says—

“We explained to Mr C that, by law, we must not investigate action relating to the determination of the amount of any rent or service charge. This meant we could not investigate the evidence base for pricing, or what berthing fees should be charged. However, we did look at how Scottish Canals handled Mr C’s complaint. We found that Scottish Canals responded to Mr C’s complaint in line with their complaints handling procedure. We found that their responses to Mr C were reasonable. We found evidence that Scottish Canals considered Mr C’s complaint and provided reasoned and rational responses. Given this, we did not uphold Mr C’s complaint.”

15. The SPSO advises that, in looking into the complaint, “Rent and service charges are an excluded category…The issue raised was about the way the charges had been set. We were restricted to looking at complaint handling issues.”

PPC/S5/18/19/5

16. In making some additional comments on issues raised in evidence to the Committee, the SPSO added—

“We also noted the concerns about the lack of protection afforded to someone living full-time in a canal boat. We have considerable sympathy for anyone in that position but would point out that a legislative change is required to remedy this. An Ombudsman cannot change laws but only look at the protections afforded by the law…”

17. In his response, the Cabinet Secretary said—

“One of the points raised by the petitioners was the review of boating charges. I am conscious that this is an area where the [Scottish Canals] board applied significant scrutiny and challenge to ensure that any increases were applied in a manner that was affordable to all users – resulting in the restriction of any increase to £100 per year.”

Dispute resolution and the establishment of a water ombudsman

18. Scottish Public Service Ombudsman. Scottish Canals came under the SPSO’s jurisdiction in July 2012. Scottish Canals must comply with the two-stage model complaints procedure we have established for Scottish Government and related organisations (this is acknowledged in the submission from Scottish Canals). “Since 2012 we have received eight complaints about Scottish Canals…broadly, concerns have been raised with us about: administration of consultations; setting of rents and charges; attitude of staff; management of moorings. We have no record of specific complaints about the general management of the Canals such as the maintenance of waterways or about the impact of diversification.”

19. Scottish Canals “…I do not believe that the establishment of an independent water ombudsman is necessary at present, nor the best use of public money.”

20. Scottish Waterways Trust, which exists to encourage activity on and around Scotland’s canals, “We are not convinced that an additional layer of regulation, through the establishment of an independent water ombudsman, would assist here and are of the view that the economic development of the asset base [the canals] is one way of ensuring its longer term viability and therefore the success of our own activities.”

21. Scottish Public Service Ombudsman notes the calls for an independent water ombudsman “The Waterways Ombudsman in England and Wales is appointed by the organisation it considers complaints about and, while its Board includes a minority of appointees from the Canal and Rivers Trust, its status is significantly less independent than the SPSO’s which is a Crown appointment, funded through the parliament and with powers set out in statute.”

“The SPSO has a very broad jurisdiction. This reflects the size of Scotland, its public services and the population it serves. It would simply be disproportionate and unnecessarily expensive to the public purse to have a

PPC/S5/18/19/5

number of small, subject specific offices.” “While the larger population in England and Wales means that it is possible to appoint a single Ombudsman, the Waterways Ombudsman remains a small organisation consisting of one individual who operates on a part-time basis…” “While the desire for a specialist Ombudsman is understood, we question the value it would add.”

22. Royal Yachting Association Scotland (RYA Scotland) “RYA Scotland believes there is an argument for the establishment of an independent water ombudsman but on the basis of a remit broader than that proposed in Petition PE1693.”

“…the current change in leadership at Scottish Canals gives good reason to allow more time for improved relations to recover the good levels of stakeholder engagement of previous years and for a fruitful working relationship to be re- established. There may still be need for the role of ombudsman for some concerns, particularly for individual boat owners.”

“In the past 6 years we have observed worsening and reducing communication and consultation between the management of Scottish Canals and stakeholders….reaching a point where the defensive approach of Scottish Canals has made the opportunity to explore or question decisions and the processes of reaching them, difficult and often impossible.”

“RYA Scotland is minded to support the establishment of an independent ombudsman with a focus on inland waters.”

23. But then went on to caveat this position—

“…we feel that there may already be scope for the Scottish Public Services Ombudsman to fulfil the desired role given Scottish Canals is a publicly owned entity. Further, we feel the position of Petition PE1693 is too limited in scope in that there are more waterways and canals than those described in the petition and problems may arise for any navigable inland waters.”

“We would therefore recommend that any remit for an independent ombudsman service or an extension to the remit of the SPSO, should cover all canals, navigable rivers and lochs, including those where national park authorities have responsibility.”

24. The Inland Waterways Association was broadly supportive of the proposal for an ombudsman explaining—

“In the light of the number of issues that IWA is concerned about on Scotland’s canals, IWA considers that some process is needed to hold Scottish Canals to account in order to ensure the waterways in Scotland, and particularly the restored Lowland Canals, have a more secure future than would otherwise be the case.”

“A strong argument in favour of an ombudsman scheme for Scotland being set up is the fact that it used to have one. The Waterway Ombudsman was

PPC/S5/18/19/5

established in 2005 and until 2012 covered Scotland’s canals as they were part of the British Waterways Board’s waterways.”

25. However it goes on to say “There may…be other ways that issues on the Scottish Canals’ waterways can be scrutinised and their actions held to account, and IWA would support alternative solutions…”

“Over the last two years, IWA has had cause to write to Scottish Canals seven times, about a variety of matters including: increases proposed (and already implemented) in a licence and mooring pricing consultation (October 2016), proposed loss of navigable canal width in the Union Canal Towpath Study (September 2017), reduction in availability of the Falkirk Wheel for boats as a result of the proposed Rotate Project (March 2017), the potential end of hire boating on the Lowland Canals (March 2017), the closure of Ardrishaig Pier (June 2017) and the closure of two lift-bridges on the Forth & Clyde Canal (February 2018).”

26. The Inland Waterways Association speculates that another possible solution might be to reinstate the Inland Waterways Advisory Council in Scotland. IWAC was disbanded in 2012 following the creation of Canal & River Trust. “Unlike an Ombudsman scheme, IWAC was able to make recommendations on matters of policy. As part of the petitioners’ case is the perceived failure of Scottish Canals’ policies towards maintaining the navigations, something like IWAC might be a better way of reviewing policies, perhaps in addition to an enhanced Scottish Ombudsman scheme that can deal with individual complaints.”

27. The Cabinet Secretary for Transport, Infrastructure and Connectivity indicates in his submission that the Scottish Government does not consider that there is a need for an independent water ombudsman, stating—

“…there are existing routes for issues to be raised, Scottish Ministers do not consider that the creation of an Independent Water Ombudsman would be the most appropriate way to address the petitioners concerns.”

28. The Cabinet Secretary also notes that, in 2011—

“The Scottish Government proposed, as part of the legislative process, that the British Waterways Board, operating solely in Scotland, should come within the scope of relevant Scottish Legislation, including the Scottish Public Services Ombudsman Act. The summary of responses to the consultation in 2011 states that the Waterways Ombudsman was supportive of this proposal and no objections were raised.”

29. And he adds—

“Although we have not undertaken specific analysis of the cost of the proposals to create a new Ombudsman, there is likely to be a significant resource required to set up and to run any such body.”

PPC/S5/18/19/5

Conclusion

30. The Committee is invited to consider what action it wishes to take. Options include —

• To take evidence from Scottish Canals

• To take any other action the Committee considers appropriate.

Clerk to the Committee

Annexe The following submissions are circulated in connection with consideration of the petition at this meeting—

• PE1693/A: Audit Scotland submission of 24 October 2018 (113KB pdf) • PE1693/B: Scottish Waterways Trust submission of 26 October 2018 (238KB pdf) • PE1693/C: Royal Yachting Association Scotland submission of 25 October 2018 (287KB pdf) • PE1693/D: Inland Waterways Association submission of 26 October 2018 (340KB pdf) • PE1693/E: Scottish Public Services Ombudsman submission of 29 October 2018 (458KB pdf) • PE1693/F: Scottish Canals submission of 30 October 2018 (115KB pdf) • PE1693/G: Cabinet Secretary for Transport, Infrastructure and Connectivity submission of 29 October 2018 (119KB pdf) • PE1693/H: Petitioner submission of 29 November 2018 (145KB pdf)

All written submissions received on the petition can be viewed on the petition webpage.

Petition to the Scottish Parliament from the Lowland Canals Association requesting an Independent Water Ombudsman Petitioner Graeme Harvey on behalf of Lowland Canals Association

Date 29/01/2018 Lodged

Petition In Scotland, the non independent government organisation, the summary Scottish Public Services Ombudsman, was appointed with a limited remit to review and arbitrate on disputes with Scottish Canals. Our assertion is that in the absence of an independent Waterway Ombudsman and/or an independent appeals system, Scottish Government is failing in it’s responsibilities to put in place the usual checks and balances that are normal in public life. It seems to be discriminatory that these checks and balances exist in England and Wales but not in Scotland.

There is a perception that Scottish Canals are a waterways authority. Inherent in this is the expectation that all their pricing, publicity and mooring allocation will be neutral, transparent, consistent and fair with their primary commitment to canal operations. This should be in line with their legal obligation to maintain the canals for navigation. Boaters and businesses investing in life choices will make them susceptible to the decisions and pricing policies implemented by Scottish Canals. However, Scottish Canals are primarily an asset based company operating solely for their own commercial benefit. It is our assertion that due to underfunding by Scottish Canals in the infrastructure there is a real threat to the long-term survival of navigation on the lowland canals. Due to the differing perspectives between boaters and Scottish Canals we have identified 13 current areas of concern. We believe an independent water ombudsman will be able to address the above and any ongoing issues and represent the interests of boaters and businesses operating on the canal.

Previous The Lowland Canal Association was formed last year by a large action number of boaters who felt disempowered by Scottish Canals who use their monopoly position to ignore some of our major concerns.

We have tried to resolve a number of issues direct with Scottish Canals both at public meetings and through their complaints procedure but substantive conflicts have not been resolved. Some of our concerns have been referred to the SPSO who have declared that their remit specifically prevents them from considering the issues.

Several local MSPs have been contacted with details of our concerns.

Background Historically information

British Waterways was a body responsible for managing approximately 2000 miles of canals across the whole of the UK. In 2012 there was a split in the organization, British Waterways’ assets and their canals in England and Wales were transferred to a charity, Canal and River Trust (CRT) and that is the position today. However in Scotland, British Waterways remains as an organization but trading under the name of Scottish Canals. All its trading reports are filed under the British Waterways Board. Scottish Canals are responsible for 137 miles of canals as well as associated land and property assets and are an asset based business reporting to the Scottish Government. However, under the Transport Act 1962 Scottish Canals have a core statutory duty to operate and maintain the waterways with an obligation to maintain the canals for navigation. The Forth and Clyde Canal and the Union Canal were reopened as recently as 2000 following the award of a grant of £78million from the Millennium Commission To place in context, CRT manage approximately 1900 miles of canals which form a largely interconnecting network across large areas of England and Wales. In Scotland, there are only 4 working canals, the Caledonian, the Crinan, the Union and the Forth and Clyde with a total length of 137miles. The Union and the Forth and Clyde are connected at the Falkirk Wheel but the other two are isolated. Scottish Canals are defined as a standalone public body with headquarters in Applecross Street, Glasgow. They are a public corporation reporting to the Scottish Government, sponsored by the Transport Scotland Agency and ultimately to the Minister of Transport, Humza Yousaf MSP.

Content of Petition

Before the break up of British Waterways, the Inland Waterways Advisory Council (IWAC) dealt with issues of dispute or grievance across the whole British Waterways’ network. When the canals in England and Wales were transferred to the Canal and River Trust, this board was wound up and a completely independent Water Ombudsman was appointed to mediate on conflict issues between CRT and the boaters. His decisions are final. In Scotland, the non- independent government organisation Scottish Public Services Ombudsman(SPSO) was appointed, with a limited remit to review and arbitrate on issues. This petition is requesting the same safeguards for Scottish boaters and waterway users and the establishment of a totally independent water ombudsman to safeguard the interests of waterway and canal users. It has been our experience that 3 submissions to the SPSO have not been actioned satisfactorily as their terms of reference are limited to “injustice, hardship or maladministration”. They are specifically prevented from taking “Action relating to the determination of the amount of any rent or service charge”. They are also unable to deal with other navigational issues. Scottish Canals write their own procedures and the ombudsman can only act when the procedures are ignored or not followed. He cannot comment on the acceptability of the procedure themselves. Scottish Canals assert that they use a “strong network of advisory groups” as a regulatory measure. There is an argument to be made that these advisory groups will have their own agendas that do not necessarily align with the views of other canal user groups. For example, residential boaters experience different issues from commercial boat operators. Our assertion is that in the absence of an independent Waterway Ombudsman and/or an independent appeals system, Scottish Government is failing in it’s responsibilities to put in place the usual checks and balances that are normal in public life. It seems to be discriminatory that these checks and balances exist in England and Wales but not in Scotland. One serious area of concern is that Scottish Canals have taken the legislation re canal management from the English legislation with minor adjustments but they did not bring over the checks and balances. The SPSO has stated that Scottish Canals have a mandate to “set mooring fees” and that he has no jurisdiction to intervene. Scottish Canals can charge any price they decide whether it is a reasonable levy or not. There are no protective factors or constraints except those imposed by Scottish Canals who are in a monopoly position. So why do we need an independent Water Ombudsman? The issues identified below were raised by boaters during the recent consultation on the report into Scottish Canals Pricing Policy which was produced by Gerald Eve. 138 comments were made and are publicly available on Scottish Canals’ website. Most of the concerns were in relation to pricing, policies and canal maintenance. Scottish Canals argue that they accept Gerald Eves report as “robust, fair and transparent” and they will not accept any significant changes despite the large number of concerns raised by boaters and the Royal Yachting Association and the Inland Waterways Association. Some current issues which could be reviewed by an independent Water Ombudsman would include: - 1. There is an ongoing need for an independent body for resolution of differences of opinion. 2. Residential boaters have no rights except the right to be taken to court before eviction. 3. Scottish Canals have a virtual monopoly on mooring sites which it is believed they are exploiting. 4. There appears to be a closed waiting list for moorings and evidence suggests that Scottish Canals are not being fair in allocation of mooring places. 5. Mooring facilities and their maintenance continue to be an issue. 6. Build-up of silt and weeds cause continual problems for boaters. One result is that fewer boats are transiting the lowland canals. Financial penalties have been introduced for using the parts of the canals during the week. Scottish Canals’ policies and shortfalls in maintenance spending are a threat to the long-term survival of navigation on the lowland canals. 7. In cases of hardship, matters are dealt with individually by Scottish Canals and therefore can be arbitrary. 8. Concerns and anomalies raised about Gerald Eves pricing review have not been adequately dealt with by Scottish Canals. Boaters accept the matrix as a tool but disagree with the conclusions. Appeals to the SPSO have been rejected. 9. Mooring fees will be reviewed every 5 years with a possibility of further increases. There have already been substantial above inflation increases to bring current mooring fees into line with Living on Water rates. 10. Communication has been an issue. Scottish Canals have a sophisticated public relations department. The Royal Yachting Association was one voice among many that has been ignored, particularly in relation to the new pricing review. Scottish Canals are therefore mainly paying lip service to users with no substantive changes. 11. There are views being expressed by boaters, privately and at public meetings, that if they speak out they will be penalised by not getting their licence or their annual mooring renewed. One example is that a boater was threatened with possible legal action for expressing an opinion. 12. There is a perceived conflict of interest in that Scottish Canals have purchased boats and are then able to use them commercially or to rent them out for Living on Water. They are using their monopoly position to gain an unfair financial advantage. For example, it has been noted that one commercial organization has moved down to England due to difference of opinion about pricing as expressed at a public meeting. 13. The two top managers in Scottish Canals have a background in property management which does not reflect the ethos of a waterway authority. Boaters would like to have representation on the board in a non-executive basis purely to discuss boaters’ concerns.

Conclusion

There is a perception that Scottish Canals are a waterways authority. Inherent in this is the expectation that all their pricing, publicity and mooring allocation will be neutral, transparent, consistent and fair with their primary commitment to canal operation. This should be in line with their legal obligation to maintain the canals for navigation. Boaters and businesses investing in life choices will make them susceptible to the decisions and pricing policies implemented by Scottish Canals. However, Scottish Canals are primarily an asset based company operating solely for their own commercial benefit. It is our assertion that due to underfunding by Scottish Canals in the infrastructure there is a real threat to the long-term survival of navigation on the lowland canals. Due to the differing perspectives between boaters and Scottish Canals we have identified 13 current areas of concern. We believe an independent water ombudsman will be able to address the above and any ongoing issues and represent the interests of boaters and businesses operating on the canal

Unique Web We believe that an independent Water Ombudsman is necessary to Addresses / safeguard the interests of waterway users and to be able to look at Related conflicts of interest in Scottish Canals' ativities. He should be able to Information ensure that navigation along the full length of the lowland canals is maintained.for the benefit of future generations.

PE1693/A Audit Scotland’s submission of 24 October 2018

The Scottish Canals 2017/18 external audit annual report did not highlight any risks in respect of how Scottish Canals fulfils its statutory functions, and provided an unqualified audit opinion which includes an opinion on regularity. The petition from the Lowland Canals Association makes reference to Scottish Canals’ pricing policy. Scottish Canal’s has a published fees and charges framework which is available on its website. This policy is developed through consultation and engagement with a wide range of canal service users and stakeholders. Around 57% of Scottish Canal’s income is generated by Scottish Canals through fees and charges, retail activities and income from investment properties. The remainder comes from the Scottish Government in the form of grant-in-aid and an element of capital funding. Income generated is used to fund core Scottish Canal activities including the maintenance of the canal network in accordance with Scottish Canal’s asset management planning. When Scottish Canals was created it inherited a legacy fund of £10 million from the British Waterways Board, which it has invested in various longer term regeneration projects. Scottish Canals works with a number of joint venture partners on its income generation work. Its work in North Glasgow, which covers part of the lowlands canal network, is undertaken through one such joint venture vehicle, BIGG. This activity is funded separately from the core Scottish Canals activity. There are governance arrangements in place over the North Glasgow Project with Scottish Canal’s joint venture partner, which include regular reporting to the Scottish Canals Board. Scottish Canal’s wider aims, is set out in its strategy and business plans, include economic regeneration and enhancing the canal network to create greater uses of the canals and assets for community benefit. Although the 2017/18 audit report did not identify risks in respect of the extent to which Scottish Canals is currently fulfilling its statutory duties, it did highlight areas of future risk around maintenance of the canal infrastructure, longer term investment in the canal assets, and how Scottish Canal’s asset planning links to longer term financial planning. The auditor plans to consider these potential risks further in the 2018/19 external audit, alongside how Scottish Canals continues to fulfil its statutory obligations and future plans for Joint Ventures, including the North Glasgow Project. PE1693/B Scottish Waterways Trust’s submission of 26 October 2016

I refer to your letter dated 1 October 2018 sent on behalf of the Committee inviting views on the action called for in the petition. The Scottish Waterways Trust exists to encourage activity on and around Scotland’s canals, maximising the utilisation of this wonderful piece of our national industrial heritage. We do this through a range of activities designed to engage people and communities across the network, e.g. Canal College. Our focus is therefore on the use of the assets for these socio-economic purposes helping to deliver Inclusive Growth, and not on the navigation route, per se. We are not convinced that an additional layer of regulation, through the establishment of an independent water ombudsman, would assist here and are of the view that the economic development of the asset base is one way of ensuring its longer term viability and therefore the success of our own activities. PE1693/C Royal Yachting Association Scotland’s submission of 25 October 2018

Introduction The Royal Yachting Association Scotland (RYA Scotland) is the Secretariat for the Cross Party Group on Recreational Boating and Marine Tourism, is a founding organisation of Scotland’s Marine Tourism Development Strategy, ‘Awakening the Giant’ and has positive and constructive working relationships with many key bodies across Scotland including, inter alia; Crown Estate Scotland, Marine Scotland, Scottish Natural Heritage, British Marine Scotland and Scottish Canals.

RYA Scotland is the recognised governing body in Scotland for all forms of dinghy and yacht racing, motor and sail cruising, RIBs and sports boats, windsurfing, canal boats, and personal watercraft. We refer to these disciplines collectively as ‘boating’. Boating takes place wherever people take to the water in boats. This can be on purpose built facilities and reservoirs, inland waterways or canals, natural fresh water lochs, rivers, estuaries, coastal areas and on the open sea.

Our purpose is ‘to promote and protect safe, successful and rewarding boating in Scotland’. We represent a community of about 70,000 people actively engaged in boating activity in Scotland, over 20,000 of whom are members of our affiliated clubs. We support nearly 300 local clubs and training centres, the majority of which are within Scotland’s coastal communities and inland waterways and work with a diverse range of partners to achieve the outcomes described in our Strategic Plan.

RYA Scotland is volunteer-led, with up to 30 volunteers engaged in our committee structure at any one time and has a professional staff of 12.

The community we represent draws interest from people of all social and economic backgrounds for whom boating is their sport, recreation or business, whether this be a large motor yacht in a marina, a small sailing dinghy maintained in the garden or a canal boat based in one of Scotland’s inland waterways.

Recreational boating and marine tourism in Scotland is recognised as a significant contributor to the leisure economy of Scotland adding some £130M on an annual basis.

Our members across the United Kingdom, value greatly the warm welcome from local communities across Scottish marine and inland waters and are great ambassadors for our waters as an accessible cruising destination and experience.

In this response we represent the interests of a body of individual RYA Members and RYA Affiliated organisations based on and around Scotland’s lowland canals, the Forth and Clyde and Union canals specifically, and the interests of the wider Scottish boating community who regularly make use of Scotland’s canals and waterways for sport, leisure, recreation, tourism and business.

Summary Position RYA Scotland has had concerns over the strategic direction of Scottish Canals, the decision making processes within the organisation and its engagement with stakeholders and customers.

RYA Scotland believes there is an argument for the establishment of an independent water ombudsman but on the basis of a remit broader than that proposed in Petition PE1693.

However, we are greatly encouraged by the recent engagement of the new Chief Executive Officer at Scottish Canals and believe this change should be given time to embed before further action on the establishment of an ombudsman is pursued.

We believe the fundamental issue for Scotland’s canals is the lack of sufficient Government funding for Scottish Canals to execute their remit in full and to meet the statutory requirements referred to in Petition PE1693.

Background In 2012, RYA Scotland supported the Scottish Governments decision that waterways in Scotland would not be transferred to the Canal and River Trust and that British Waterways Scotland would remain a state-owned entity, operating as Scottish Canals. The rationale for this being that Scotland’s inland waterways and canals are fundamentally different in nature from most canals in England and Wales in that they are sea-to-sea transit canals designed originally for small ships, whereas in England and Wales most canals are narrow-boat canals for inland goods transport.

RYA Scotland has always worked with and supported British Waterways Scotland, providing input and offering constructive criticism where appropriate. Since 2012 we have continued to do so with Scottish Canals, where communication with stakeholders and users initially continued on a similar basis as before.

Our interest is in the ongoing provision of a vibrant series of canals and waterways that provide for the interests of the boating community we represent and others who may benefit from Scotland’s canals. We believe water based boating activity is a fundamental necessity for the sustainability of Scotland’s Canals. Moreover, a well- managed canal system contributes to all five of the Scottish Government strategic objectives.

As was known at the time of the instigation of the Millennium Link Project, unused canals are cluttered, overgrown and unattractive places that are detrimental on the local areas in terms of visual, social and economic impact as well at being attractive to instances of anti-social behaviour, fly tipping and in some cases more serious criminal activity. Conversely canals with a vibrant core of on water activity are seen as safe places of healthy recreation, naturally attracting canal side activity such as walking, running, cycling and spectating as well as boosting surrounding property values and supporting local business and employment through additional trade.

We firmly believe recreational boating and the associated SME industry is a vital component of the economy both on and around a canal and the continued and unrestricted movement of recreational boating is critical to the vitality of the immediate vicinity to a canal and the surrounding community.

Our partner organisations and affiliates, who are based on the lowland canals (Forth and Clyde and Union canals), record over 10,000 individual boat movements each year that undertake all or part of the journey through the Forth and Clyde Canal. The charitable organisations based on the canal deliver further boating experiences for over 35,000 people many of whom are young people with disabilities.

In the past 6 years we have observed worsening and reducing communication and consultation between the management of Scottish Canals and stakeholders. We have also been aware of increasing acrimony between the Chairman of the Scottish Canals Board, the Chief Executive Officer of Scottish Canals and the representatives of several leading voluntary providers based on and around the lowland canals, reaching a point where the defensive approach of Scottish Canals has made the opportunity to explore or question decisions and the processes of reaching them, difficult and often impossible.

We find now that many sections of the Forth and Clyde Canal are not (and have never been) maintained to the statutory 1.8m depth meaning boat movements are at best challenging. The lack of dredging and poor maintenance schedule mean algal and weed growth are increasingly restricting movement on the water and presenting health hazards by preventing adequate water flow or trapping detritus. In addition the restricted depth or width risks forcing canal boats into conflict with kayakers and rowers as they must pass much closer to each other than is advisable.

We are also aware of the growing visual evidence indicating an increased need for maintenance on the Crinan and Caledonian Canals and were dismayed at the recent failure of the bridges at both Twechar and Bonnybridge leading to the effective closure to transits and a large proportion of the operations of our partners on the Forth and Clyde Canal.

We have previously publicly stated our concerns that the strategic direction of Scottish Canals is diverging from their statutory obligations given they cite the “changing nature of our business from a canal body to an increasingly leisure related business.” Further, their consultation with key stakeholders and in particular those based on the waters of the lowland canals, has fallen short of the National Standards for Community Engagement, standards developed by the Scottish Community Development Centre and supported by the Scottish Government and COSLA.

RYA Scotland has, however, continued to seek constructive dialogue with representatives of Scottish Canals through this time and have maintained an open channel of communication through which our observations were made known. The Chairman of Scottish Canals has attended one of our committee meetings and we have been in regular communication with amenable managers within the organisation in an effort to bring some positive influence, albeit with limited success.

It is our opinion that Scotland’s Canals are close to the tipping point at which the successful regeneration achieved over many years is at risk of collapse and the £98M of public money invested in the Millennium Link Project, wasted. We observe that the failing communication of Scottish Canals Board and senior management has created a lack of transparency around the decision making processes, acutely eroded trust and has ultimately led stakeholders to this position of petitioning.

RYA Scotland’s position on an ombudsman RYA Scotland is minded to support the establishment of an independent ombudsman with a focus on inland waters.

The lack of a place or person to which or whom groups or individuals can direct their complaint beyond any internal process of Scottish Canals is evident, leaving the Board only accountable to Scottish Ministers and individuals dealing with a faceless process on their own. It has taken the formation of the pressure group ‘Keep Canals Alive!’ to which RYA Scotland is a contributing partner, to elevate the long standing issues past the Board of Scottish Canals and bring them to the attention of local MSPs and thereafter to Ministers.

In considering the petition and the case for an ombudsman, we feel that there may already be scope for the Scottish Public Services Ombudsman to fulfil the desired role given Scottish Canals is a publicly owned entity. Further, we feel the position of Petition PE1693 is too limited in scope in that there are more waterways and canals than those described in the petition and problems may arise for any navigable inland waters.

We would therefore recommend that any remit for an independent ombudsman service or an extension to the remit of the SPSO, should cover all canals, navigable rivers and lochs, including those where national park authorities have responsibility.

There is however a need to consider current relations and the improving position between Scottish Canals and their stakeholders.

Recent Changes The appointment of a new Chief Executive Officer at Scottish Canals has seen a most welcome improvement in stakeholder engagement in recent weeks.

While acting as interim CEO and since her full appointment, Catherine Topley has made extensive efforts to engage with the varied stakeholders. RYA Scotland has met her and her team directly for frank and honest discussions on the situation and we are greatly encouraged by the real potential to improve overall relations.

Similar conversations with the individual partners of Keep Canals Alive! and with the group as a whole do indicate a considerable change in the attitude presented by Scottish Canals.

This has occurred through the process of Petition PE1693 and, we would suggest, has significantly warmed relations since the meeting of the Public Petitions Committee in September 2018.

While RYA Scotland is minded to support the establishment of an independent ombudsman for inland waters, the current change in leadership at Scottish Canals gives good reason to allow more time for improved relations to recover the good levels of stakeholder engagement of previous years and for a fruitful working relationship to be re-established. There may still be need for the role of ombudsman for some concerns, particularly for individual boat owners.

Addressing the fundamental issue The work of Keep Canals Alive! has exposed deep concerns around the strategic direction of Scottish Canals and the investment options the Board have pursued.

Nonetheless, the facts remain that Scottish Canals inherited a £30M maintenance deficit from day one as the Millennium Link Project was not funded to the full budget. This deficit has only grown with time and is now estimated to exceed £50M and possibly be as much as £75M.

The current investment levels from the Scottish Government and the self-generated income of Scottish Canals are wholly insufficient to address the maintenance needs of a national asset which is approaching 250 years old.

An independent ombudsman cannot compel the Government to increase funding or generate any other forms of support for public services and while it may provide a platform for issues to be investigated the options to influence change are likely to be limited until this fundamental lack of funding can be addressed.

PE1693/D

Inland Waterways Association submission of 26 October 2018

Background to the Inland Waterways Association

The Inland Waterways Association is the membership charity that works to protect and restore the 6,500 miles of canals and rivers in England, Scotland and Wales. IWA has a network of volunteers and branches who deploy their expertise and knowledge to work constructively with navigation authorities, government and other organisations. The Association also provides practical and technical support to restoration projects through its Restoration Hub.

IWA thanks the Scottish Parliament for the opportunity to comment on the petition for a waterway ombudsman in Scotland.

Petition PE1693 - Calling on the Scottish Parliament to urge the Scottish Government to establish an independent water ombudsmen to — • safeguard the interests of waterway users • review and arbitrate on disputes with Scottish Canals • ensure that navigation along the full length of the lowland canals is maintained for the benefit of future generations.

If the Scottish Parliament was minded to recommend that a waterway ombudsman be established in Scotland then IWA would support this. In the light of the number of issues that IWA is concerned about on Scotland’s canals, IWA considers that some process is needed to hold Scottish Canals to account in order to ensure the waterways in Scotland, and particularly the restored Lowland Canals, have a more secure future than would otherwise be the case.

There may, however, be other ways that issues on the Scottish Canals’ waterways can be scrutinised and their actions held to account, and IWA would support alternative solutions that would meet the three bullet points in the petition, as detailed later in this response.

Background to the Scottish waterways

150 miles of canal in Scotland are managed by Scottish Canals, the operating name for what remains of the British Waterways Board after their waterways in England and Wales were transferred to Canal & River Trust in 2012. The Crinan Canal and the Caledonian Canal have remained navigable as coast to coast routes, while the Monkland Canal is currently derelict. The Forth & Clyde and Union canals (the Lowland Canals) were restored as a Millennium project, with funding from the Millennium Commission, European Regional Development Fund, Scottish Enterprise and local authorities. To complete the picture, other navigable rivers and lochs are managed by other navigation authorities, which along with some derelict canals give a total of 500 miles of navigable or once-navigable inland waterways in Scotland.

The restoration of the Lowland Canals demonstrated that waterways can build and renew communities, through improved health and leisure opportunities, social cohesion and integration, regeneration, trade, heritage and tourism.

The ERDF grant included conditions that the canals must be maintained to cruising standard for at least 25 years from completion. The canals were reopened in 2001, just 17 years ago.

As recently as 2011 the Scottish Government re-classified the Lowland Canals as Cruising Waterways, which places a statutory duty on the Board to maintain them for cruising vessels. Scottish Government said at the time: “The statutory requirement for the canals to be maintained is also important to parties involved in regeneration along the canal corridor, as it offers reassurance that the canals will be maintained in their current state in the future, and not allowed to deteriorate again. (Ref. Executive Note to SSI 2011/118)

Current areas of concern

As a campaigning organisation, IWA raises areas of concern with all navigation authorities in England, Scotland and Wales, as issues arise. Over the last two years, IWA has had cause to write to Scottish Canals seven times, about a variety of matters including: increases proposed (and already implemented) in a licence and mooring pricing consultation (October 2016), proposed loss of navigable canal width in the Union Canal Towpath Study (September 2017), reduction in availability of the Falkirk Wheel for boats as a result of the proposed Rotate Project (March 2017), the potential end of hire boating on the Lowland Canals (March 2017), the closure of Ardrishaig Pier (June 2017) and the closure of two lift-bridges on the Forth & Clyde Canal (February 2018).

IWA’s key current concerns about the waterways run by Scottish Canals are:

• Asset Management Strategy - published by Scottish Canals in June 2018 - includes the suggestion that whole sections of the Lowland Canals could face closure. • The closure of the Forth & Clyde Canal as a through route for most of 2018. The additional funding from Scottish Government has enabled contracts to be let with work due to start in January 2019, nearly a year after the two bridges failed in February 2018. • The number of locks and other lift bridges in desperate need of maintenance – such as the poor condition of lock gates and bascule bridge operating mechanisms. The current tally of broken infrastructure amounts to five inoperative bridges and one inoperative lock on the eastern end of the Forth & Clyde Canal where the waterway descends to the Kelpies and Grangemouth. • Ongoing and long-term issues with operating the locks means that user- operation is difficult. Scottish Canals’ staff have to operate many of the structures, and in recent years have imposed more restricted opening times which don’t take into account tide times at sea locks, and make it difficult for boaters to actually use the canal. • The lack of dredging which puts off deeper draughted sea going boats using the Forth & Clyde Canal as a coast to coast route. • Weed and vegetation is now starting to choke up the canal, not helped by the lack of boat movements. • The impact on the hire boat trade and tourism as a result of the restrictions and closures this year. • With sections of canal closed for significant lengths of time, other structures such as nearby locks and other moveable bridges will deteriorate through lack of use, resulting in even more funds required for repairs in the future.

Scottish Canals has argued that the coast to coast route is not being used sufficiently to justify it being kept open, but a lack of dredging and poor maintenance – together with recent closures and restrictions – will have contributed to a reduction in use. In IWA’s view the level of use should not be a significant factor for deciding to close a canal to navigation, as a vibrant waterway is one which has boats using it, and this in turn brings benefits in terms of improved health and wellbeing for the local population, as well as income through recreation, tourism and regeneration.

IWA supports Scottish Canals’ view, outlined in their Asset Management Strategy, that an extra £11m capital funding is required in the 2019-20 budget.

Waterway Ombudsman in England & Wales

The proposed remit for a Scottish waterway ombudsman as per the petition would be a far more proactive role (safeguarding the waterways and ensuring that navigation is maintained) than the current role of the Waterway Ombudsman in England and Wales, which seems a good approach and one that IWA would support.

A strong argument in favour of an ombudsman scheme for Scotland being set up is the fact that it used to have one. The Waterway Ombudsman was established in 2005 and until 2012 covered Scotland’s canals as they were part of the British Waterways Board’s waterways. A number of cases relating to Scotland were considered by the Waterway Ombudsman between 2005 and 2012. When Canal & River Trust was created in 2012 to take over management of the British Waterways Board’s waterways in England and Wales, the Waterway Ombudsman remit was restricted to the activities of Canal & River Trust and its subsidiaries, leaving complaints about Scottish Canals to be referred to the Scottish Public Services Ombudsman.

The role of the Waterways Ombudsman in England and Wales is to investigate complaints about the Canal & River Trust and any of its subsidiaries. The Waterway Ombudsman is an appointed individual, whose work is overseen by a committee. This excerpt from “Rules of the Ombudsman Scheme” explains its principal power and duties:

“20. The principal powers and duties of the Waterways Ombudsman shall be: a) to receive complaints of injustice suffered by a complainant that arise from maladministration or unfair treatment by the Trust, or any of its subsidiaries, in carrying out their activities; b) to determine whether such complaints are eligible to be considered under these Rules; c) subject to these Rules: i) to investigate such complaints and/or facilitate their resolution or withdrawal; and ii) if not resolved or withdrawn, to determine whether the complaint is well founded; and if so, iii) to make (to the extent the Waterways Ombudsman considers necessary and appropriate) such recommendations or Award as the Waterways Ombudsman considers to be fair and reasonable in all the circumstances; and d) to act in a fair, reasonable and rational manner at all times.”

Further information about the Waterway Ombudsman can be found on its website: http://www.waterways-ombudsman.org/

Inland Waterways Advisory Council

Another possible solution might be to reinstate IWAC in Scotland.

The Inland Waterways Advisory Council (IWAC), formerly The Inland Waterways Amenity Advisory Council (IWAAC) was established under the 1968 Transport Act and existed until 2012, when it was disbanded following the creation of Canal & River Trust. IWAC was a cross-border body which provided advice to Government and other interested persons on matters considered appropriate and relevant to Britain’s inland waterways.

The summary of responses to the consultation on Government proposal to abolish the Inland Waterways Advisory Council published in 2012 stated that:

“As set out in the Defra consultation document ‘A New Era for the Waterways’ published on 30 March 2011, the proposal to move British Waterways in England and Wales into civil society in 2012 outside of Government control and management and to set up a new waterways charity – the Canal & River Trust (CRT) – means that there will no longer be a need, in the Government’s view, for a statutory body to provide advice for policy development. The UK Government is clear that policy development is the role of Ministers, who are accountable to Parliament.

“In Scotland, it is not proposed to change the status of British Waterways, which will remain in the public sector as a body operating only in Scotland. When the assets of British Waterways in England and Wales are moved into civil society, British Waterways Scotland will commence operation as a self- standing public organisation. In light of the changes planned in England and Wales, the benefits of a cross-border advisory body are eliminated. Scottish Ministers have therefore agreed that IWAC should be abolished in Scotland, and intend to rely on the informal advisory network which has developed.

In 2013 the Scottish Parliament’s Infrastructure and Capital Investment Committee reported on the abolition of IWAC, quoting the Scottish Government position, as follows: “… the Advisory Council’s activities in recent times have been almost wholly focused on work which was relevant to England and Wales but not for Scotland.” And “Ministers are of the view that there is a strong network of advisory groups well placed to provide advice on inland waterways and that there is consequently no need to retain the Inland Waterways Advisory Council.” Unfortunately, this “informal advisory network” has diminished over the years since then (although a newly created alliance – Keep Canals Alive! – has been established in response to the current situation on the Lowland Canals).”

The BW Scotland Group which included user representatives was wound up on the split of BWB; the salt-water and fresh-water consultative groups were wound up in 2012; and the Lowland Canals Users Forums have been reduced in frequency and scope.

Unlike an Ombudsman scheme, IWAC was able to make recommendations on matters of policy. As part of the petitioners’ case is the perceived failure of Scottish Canals’ policies towards maintaining the navigations, something like IWAC might be a better way of reviewing policies, perhaps in addition to an enhanced Scottish Ombudsman scheme that can deal with individual complaints.

Of the other principal inland navigations in Scotland, some are managed by Port Authorities which may not be classed as public sector, and therefore beyond the reach of an Ombudsman. Other navigable waterways, including some lochs, are managed by local authorities, water companies and trusts. If an Advisory Council were re-formed it would be sensible to have the leisure aspects of all navigable waterways included in its remit, and a list, taken from IWA’s Inland Waterways Directory, is included as appendix 1.

Navigation authorities in England and Wales

Most, if not all, of the navigation authorities in England and Wales and certainly the larger ones that IWA deals with the most, all hold regular user group meetings for representatives of different boating and other organisations to attend, where issues can be raised and answers/responses expected. In the case of the two largest navigation authorities (CRT and EA) these take place at national and local level.

It would seem that this type of forum hasn’t been taking place recently in Scotland, leaving the various local user groups feeling that their voices are not being heard. We would suggest that Scottish Parliament should urge Scottish Canals to hold regular, open forums for all users of the waterways to raise issues and ask questions (and we note that the new CEO has recently re-established such meetings).

Canal & River Trust are required, as a condition of their Grant Agreement from DEFRA to assess and report annually their asset management performance against a suite of defined measures. Three of these measures are used to determine the payment of the conditional element of the DEFRA Grant.

In contrast to Scottish Canals’ Asset Management Strategy, the equivalent document produced by Canal & River Trust takes an approach based on how they will improve asset conditions over the next 5 years:

“The AMS sets out our asset management approach for the next 5 years to help realise the value from our waterways for generations to enjoy now and in the future. Whilst the emphasis of the AMS is on the management of physical assets, our activities are focussed on attaining benefits from waterways for our customers, visitors and stakeholders. Providing good customer service and a positive customer experience is central to our asset management approach.”

This is a very different approach from Scottish Canals, where there seems to be assumption that waterways could be closed, with their document setting out a strategy for a planned closure and abdicating all responsibility for maintaining navigation.

We recommend that Scottish Parliament requests a copy of Canal & River Trust’s Asset Management Strategy so that the two documents can be compared.

Conclusion

IWA considers that some system by which Scottish Canals can be held to account for its actions is required. At the same time, increased funding for the waterways managed by Scottish Canals is essential in preventing further asset deterioration and waterway closures, in order to preserve our industrial heritage, and optimise the leisure, tourism, health, well-being and economic benefits of these waterways for everybody in Scotland – whether residents or visitors.

APPENDIX 1 Excerpt from IWA’s Inland Waterway Directory listing all currently navigable waterways in Scotland:

For the purposes of this database, inland waterways have been taken to include: • all non-tidal waterways where navigation is or has been practised regularly by cargo-carrying craft, passenger craft and/or motorised recreational craft; • tidal waterways where navigation is or has been practised regularly by cargo, passenger on internal traffics or by significant numbers of recreational vessels without open-sea capability.

The full version of IWA’s Waterway Directory can be downloaded from: www.waterways.org.uk/waterwaysdirectory

PE1693/E Scottish Public Service Ombudsmen submission of 29 October 2018

Background 1. Scottish Canals came under the SPSO’s jurisdiction on 2 July 2012. This means that the SPSO can: 1.1. consider complaints made about Scottish Canals 1.2. set complaints standards for Scottish Canals. 2. Scottish Canals must comply with the two-stage model complaints procedure we have established for Scottish Government and related organisations. Complaints about Scottish Canals. 3. Since 2012 we have received eight complaints about Scottish Canals.1 We have: 3.1. published one investigation report: https://www.spso.org.uk/decision- reports/2017/october/decision-report-201608915-201608915 3.2. advised four complainants that they needed to first complain to Scottish Canals 3.3. advised two complainants that their concerns were not matters we could investigate 3.4. resolved one complaint. 4. In cases where we have not investigated, there are statutory limits to what we can tell Parliament about complaints received. We also only hold limited information about complaints received more than two years ago or complaints which we have referred back to the organisation, but, broadly, concerns have been raised with us about: 4.1. administration of consultations 4.2. setting of rents and charges 4.3. attitude of staff 4.4. management of moorings. 5. We have no record of specific complaints about the general management of the Canals such as the maintenance of waterways or about the impact of diversification2. What we can look at 6. Before the Ombudsman can consider a complaint they must meet certain criteria. They must:

1 See the Appendix for tables of all complaints received and closed. 2 Although please see the note at para 4 about the limited nature of the information we hold on complaints from some years ago or which are premature. 6.1. have usually been put to the organisation first 6.2. come from or on behalf of a person3 who has been impacted or affected by the issue (put another way, they must be from someone who is complaining about an issue which they believe was maladministration that lead to injustice to them) 6.3. not fall within one of the excluded categories of subject matter in our legislation. 7. Of the topics mentioned in the Committee’s letter, we could, consider complaints about the maintenance of a waterway, failure to meet statutory obligations or diversification but only if a person can show that has had an impact on them directly. As we are not a regulator or scrutiny organisation, we do not have general powers to assess the overall quality of the service being provided. Nor do we have the powers to initiate an enquiry where we have no complaint, but believe there may be an issue that is having a detrimental effect on service users generally. 8. In individual cases, there may be additional limitations that affect how closely we can get to decision-making. We have an extended jurisdiction over health and social work matters where we can assess the merits of a decision. In other areas, such as canals, however, we cannot look at the merits of a decision unless there has been maladministration in how that decision was made. Failure to fulfil a plainly stated statutory obligation would amount to maladministration, but if there was some discretion about how to interpret that obligation that may limit what we can do. 9. Rent and service charges are an excluded category and the impact of that can be seen in our one published investigation (link above). The issue raised was about the way the charges had been set. We were restricted to looking at complaint handling issues. 10. The Waterways Ombudsman in England and Wales was not set up by statute and was established by the Canal and River Trust to take complaints about them. Its powers and limitations are set out in scheme rules. The rules establish the limits of the role and there are some limitations on what they can consider. These are different to the legislation under which we operate and in some areas we have more flexibility. In terms of scope, they do not appear to have the same restriction around rent or service charge. 11. As we have previously noted to the Committee, it is the areas of exclusion which lead to the highest levels of dissatisfaction with our office, higher than when we do not uphold a complaint we have been able to investigate4.

Additional comments on the petition

12. The petition specifically seeks an “independent” Ombudsman. This phrase was repeated during the evidence. The Waterways Ombudsman in England and

3 In this context, person can include a company or an organisation 4 Our response to petition PE1659 http://www.parliament.scot/S5_PublicPetitionsCommittee/Submissions%202017/PE1659_D.pdf Wales is appointed by the organisation it considers complaints about and, while its Board includes a minority of appointees from the Canal and Rivers Trust, its status is significantly less independent than the SPSO’s which is a Crown appointment, funded through the parliament and with powers set out in statute. 13. From reading the oral evidence, it seems likely that the request for an independent Ombudsman may be more reflective of a desire for someone with a canals specialism and expertise rather than the specific status of the organisation. While this is understandable, it may help to give reassurance if we address this point specifically. 14. The SPSO has a very broad jurisdiction. This reflects the size of Scotland, its public services and the population it serves. It would simply be disproportionate and unnecessarily expensive to the public purse to have a number of small, subject specific offices. The benefits to having a broad jurisdiction, are that we can share best practice and learning quickly across sectors and achieve economies of scale and flexibility in the service we provide. We appreciate that there may be perceptions that the breadth leads to a loss of expertise and, in individual cases, the SPSO has a range of expert advisors on which we can draw, and where we do not have an existing arrangement for specific advice, will seek it. We may not be the subject experts across the board, but we are expert in investigating complaints and knowing how to ask questions of experts in such a way as to ensure we have sufficient knowledge to make robust decisions. 15. While the larger population in England and Wales means that it is possible to appoint a single Ombudsman, the Waterways Ombudsman remains a small organisation consisting of one individual who operates on a part-time basis and in 2017/18 dealt with 48 enquiries and conducted 14 investigations5. 16. In conclusion, from considering the petition and evidence given it seems likely that, while there was some dissatisfaction arising from the limitations on our role (specifically around rents and charging), more generally, the underlying unhappiness was that there was not a regulator or other scrutiny organisation which could hold Scottish Canals to account for its performance and service generally. An Ombudsman would, in our view, simply do much as SPSO do, and in some circumstances hold the organisation to account about specific issues, relating to specific people, shining a light on matters that enable a range of stakeholders to hold them to account. While the desire for a specialist Ombudsman is understood, we question the value it would add. 17. We also noted the concerns about the lack of protection afforded to someone living full-time in a canal boat. We have considerable sympathy for anyone in that position but would point out that a legislative change is required to remedy this. An Ombudsman cannot change laws but only look at the protections afforded by the law, raising issues that might lead others to drive legislative change.

5 http://www.waterways-ombudsman.org/media/1112/ombudsman-annual-report-17-18.pdf Appendix - SPSO complaints data

Scottish Canals No of No of Cases closed Reasons for complaints complaints before closure pre- Investigations received closed investigation investigation 2012/13 0 2013/14 1 1 1 Premature 0 2014/15 0 2015/16 2 2 2 Both Premature 0 Out of 2016/17 2 1 1 0 jurisdiction Out of 2017/18 1 2 1 1 jurisdiction 1 premature 2018/19 (YTD) 2 2 2 0 and 1 Resolved Total 8 8 7 1

PE1693/F Scottish Canals submission of 30 October 2018

I refer to your letter of 2 October 2018 and thank you for the opportunity to provide our views on the action called for in the above petition to urge the Scottish Government to establish an independent water ombudsman and to address the concerns raised by the petitioners.

Scottish Canals collaborates with customers, communities, stakeholders and partners across the public, private and third sectors to derive greater public value from Scotland’s canals by using them in new and innovative ways for the people of Scotland.

Scottish Canals attract 22 million visits per year from boaters, paddlers, walkers and cyclists, as well as over 3000 transiting boats a year from across the world. Scottish Canals have acted as a catalyst for the transformation of North Glasgow and the corridor between The Kelpies and Falkirk Wheel generating £15m per year for the local economy and supports 400 jobs. All of this has been achieved through the innovative delivery of public sector services in Scotland.

However, the canals are circa 250 years old, and are working heritage assets, which are under constant wear and tear from increased usage and pressure from climate change, accordingly, it is reasonable that we take a balanced approach to the safety of the public & users, finance and functional efficiency. Each canal requires considerable investment to maintain and, due to the increasing pressure on public finances, there is a repair backlog of £70m. We are currently addressing major works which have restricted navigation on the Caledonian and Forth & Clyde Canals in recent months and are keenly aware of the frustration this has caused our boating customers. We are grateful for the additional investment from the Scottish Government and our team is committed to concluding this work, with the aim to having the bridges open in Spring 2019.

To support the limited gift in aid provided by Scottish Government, Scottish Canals are committed to generating new income streams that will develop the canal corridor and raise additional revenue streams, which can contribute to the maintenance of the canals and operational running costs, thereby ensuring Scotland’s canals can continue to be enjoyed by generations to come.

As a matter of accuracy I would draw your attention to the dowry that Scottish Canals received following it being devolved from England and Wales, which was in fact £10m not £100m as stated during the hearing.

We are committed to working collaboratively, to being even more transparent and accountable, and to find efficient and creative ways of addressing the challenges that we face. Since being appointed, I have already met the canal societies and representatives from Keep the Canals Alive and will continue working with them to build a more positive and productive relationship.

In reviewing the presentation to the committee and following discussion with various user groups, I do not believe that the establishment of an independent water ombudsman is necessary at present, nor the best use of public money. Scottish Canals adheres to the Scottish Public Services Ombudsman (SPSO), processes and already fulfils this requirement. Like all public bodies, Scottish Canals has a two- tiered complaints procedure with recourse to the SPSO to consider complaints which have gone through our internal complaints process. The SPSO is independent of government and has a duty to act impartially providing a service which mirrors the principles of the independent Waterways Ombudsman Scheme operated in England and Wales.

We were disappointed with the concerns raised during the evidence session from some representatives of the Lowlands Canals Association and the Lowland Canals Volunteer Group. Our response to the main concerns raised by the petitioners is attached at Appendix 1.

We hope this response is helpful, however, I would be happy to meet with the members of the Public Petitions Committee, together with our Director of Infrastructure, Richard Millar, to discuss the concerns raised further if this would be helpful.

Appendix 1

Background

The Scottish Government’s policy document for our inland waterways, ‘Making the most of Scotland’s canals’, sets out the principles by which Scottish Canals operates. This can be seen by the ambitions in the Foreword which include “Scottish Canals will continue to receive government grant to meet its statutory duties and help progress new initiatives but are also encouraged to develop new and existing earned income streams.”

Scottish Canals’ 2017-2020 Corporate Plan was developed to reflect the expectations set out in this policy document and the three principles of increasing financial sustainability, growing public value and empowering and motivating people shape all that we do.

Scotland’s canals contribute significantly to the economic, social and environmental prosperity of this country and much of what we do is delivered in partnership with local customers, communities, stakeholders and partners across the public, private and third sectors.

We invest significant time and effort regularly engaging with a wide range of stakeholders, including the boating community. Scottish Canals has held annual public meetings on the Caledonian and Crinan and twice-yearly meetings on the Lowland canals since 2012. These meetings were (and still are) attended by members of the Executive Team, Heads of Service and Board members. Meetings are set months in advance and boating customers are notified by email with the dates and locations publicised on the Customer Hub of www.scottishcanals.co.uk and via social media.

Following customer feedback, in 2017 we introduced one annual meeting on the Forth & Clyde and a separate meeting on the Union Canal. These meetings took place at the beginning of October, with one scheduled for the 08 November 2018. Customers were invited to submit questions in advance and minutes and presentations from the day are uploaded to the Customer Hub of our website.

In 2015 we introduced quarterly boating newsletters for each of the Caledonian, Crinan and Lowland canals which are emailed out to all leisure, residential and commercial customers detailing relevant operational information to help them plan their use of Scotland’s canals. We have an open rate of 61%, which reflects well when compared with a UK public sector rate of 21%.

Petitioners’ concerns

How Scottish Canals maintains its inland waterways

Scottish Canals has a rigorous inspection process for all 4100 assets within its portfolio and any issues identified are scheduled into a programme of works according to the risk they pose to the safety of the public, our visitors and staff as well as the budget that is available. Scottish Canals’ Asset Management Strategy, which was launched in June 2018, sets out the significant challenges the infrastructure faces, not only from the additional £6-9 million per year required to meet the asset need and the £70 million repair backlog but from the impact of increased usage, climate change and the uncertainty of public funding beyond the next financial year.

The bridges on the Lowlands are an example of assets which failed, not due to a lack of planned preventative maintenance, but because they required significant additional investment. These bridges were able to be addressed sooner owing to the additional £1.625 million of funding from the Scottish Government to address the failure of these bridges in this financial year, albeit, they were not a priority as assessed in the Asset Management Strategy.

Our review of the transcript from the hearing on 27th September 2018 showed statements about the condition of Scotland’s canals negatively impacting upon user numbers, tourism and other public benefits. However, our statistics show that the upgraded towpath network now welcomes 22 million visits per year from walkers, cyclists and commuters, the number of residential boaters has grown from a handful in 2013 to 127 in 2018, 3000 transiting boats visit the canals each year from around the world and the canals support over 450 long-term berth holders.

In addition, 2500 volunteers have carried out painting, litter picking, removing graffiti and vegetation management on and along the canals since 2016. In addition to improving the canal corridors, these individuals have also learned valuable employability skills.

Every year Scottish Canals enables charities, community groups and local businesses to hold more than 50 events on or along the canal banks, from fundraisers to sporting challenges. Scottish Canals has also introduced the annual Glasgow Canal Festival, the annual Red Bull Neptune Steps swimming race and the 2018 Year of Young People signature event the Youth Urban Games, which attracted 7000 attendees, engaged 1000 primary school children in urban sports and attracted 90 UK-wide athletes. This event was all paid for by third parties to drive inclusive economic growth, empower local residents and celebrate the ongoing transformation of North Glasgow.

Diversification of SC business has resulted in core business and statutory responsibilities not being delivered

Grant in Aid is paid by Transport Scotland to Scottish Canals under the Transport Act 1968 to enable Scottish Canals to deliver its statutory functions to maintain and operate the canals for navigation. It may be used for the creation of new operational canal assets but may not be used in respect of Scottish Canals’ non-operational activity where it is acting commercially within the market e.g. creating a new destination along the canal, such as the Caledonian Canal Centre.

Scottish Canals is a public body, and the long term sustainability of its business model is based on a requirement to generate operating surpluses for reinvestment in Scottish Canals’ assets, including those likely to produce a trading income for the organisation. Under the terms of the Transport Act 1968, Scottish Canals is required to act “as if it were a company engaged in a commercial enterprise” in certain cases. Scottish Canals works to secure an adequate rate of return in the context of an acceptable level of risk and with due regard to the economic, social and environmental impacts for the benefit of Scotland.

Scottish Canals stimulates economic regeneration and drives tourism activity in key nodal locations across the canal network in Scotland to deliver public value and build its financial sustainability through working with a range of partners across the public, private and third sectors.

The £10 million dowry Scottish Canals received following its separation from the UK- wide organisation was to partly compensate for the sale of commercial property assets that took place across Scotland from the 1960s onwards. It was never to be used for the maintenance burden of the canals, which remains the Scottish Government’s responsibility. However, the purpose of this spend was always to generate income that would provide a more financially-sustainable future for Scotland’s canals.

Scottish Canals’ Pricing Policy and how it is implemented

Background to the Pricing Review Following customer feedback to price changes that were introduced in April 2015, Scottish Canals commissioned an independent Pricing Review into how - and what - to charge boating customers. Respected property consultants Gerald Eve and Bilfinger GVA were appointed via the public appointments website and they worked with British Marine and the Royal Yachting Association Scotland to ensure they had appropriate understanding of marine and boating issues.

As part of this work Gerald Eve/GVA were tasked with gathering boaters’ opinions via a series of public meetings (which Scottish Canals did not attend) on each canal. However, following these meetings – and in response to customer feedback - Gerald Eve/GVA’s remit was expanded to include site visits to every residential mooring location on Scotland’s canals so they could independently evaluate the facilities, environment and attractiveness of each location to inform the pricing strategy.

Consultation on the recommendations from the independent Pricing Review The consultation which followed did not focus on whether the methodology was correct or not – as both Scottish Canals and our boating customers had agreed at the outset (October 2016) that an independent review was the best way forward and that all parties would need to adhere to its recommendations. Instead, the consultation, which Scottish Canals delivered in an open and transparent manner, centred on how these recommendations would be implemented to ensure that they were fair, consistent and did not cause financial hardship to our boating customers.

Scottish Canals wrote to our 477 long-term berth holders, the canal societies, marine organisations, 38 harbours and marinas and all riparian and list MSPs publicising the consultation and inviting feedback. Some 78 respondents replied to 17 questions. In addition, feedback from a handful of customers led to Scottish Canals agreeing to accept a late submission from the Scotland Canals Boater Group (a precursor to the Keep the Canals Alive group) on the following two issues: • What safety net should Scottish Canals adopt in order to provide a fair way of evaluating customers’ circumstances in the event they couldn’t afford to pay their mooring fees? • Evidence that Gerald Eve/GVA had not used comparable marinas in England and Wales on which to benchmark their recommended mooring prices for Scotland

These late submissions were considered with all additional issues that were raised via email.

However, in a bid to be fair and transparent, prior to preparing the formal consultation response, Scottish Canals shared specific concerns with Gerald Eve/GVA about inaccuracy in the methodology and their benchmarking figures and asked them to double-checked their assessments and approach. Gerald Eve/GVA came back to say that they were confident that the methodology and data that was used was robust, fair and transparent. As a result, both parties upheld the recommended prices.

As detailed in the Gerald Eve/GVA report, recommended prices are for standard mooring sizes only and therefore may not apply to customers with boats that are larger than the standard size. However, Scottish Canals will liaise with the customer directly to agree a fair and reasonable rate for their mooring based on the size of their boat and the mooring space/services it consumes. Mooring prices will be published on Scottish Canals’ website www.scottishcanals.co.uk

The extent to which Scottish Canals currently fulfils its statutory duties

By way of background, Scottish Canals is a public body, funded by grant-in-aid from Scottish Government and sponsored through Transport Scotland that makes a valuable contribution to the delivery of Scottish Government’s strategic objectives as set out in the National Performance Framework. Scottish Canals, the operating name of the British Waterways Board was established by the Transport Act 1962 with specific statutory and regulatory obligations to preserve Scotland’s system of canals in good condition.

In addition, Scottish Canals is required to comply with a wide range of statutory duties and legal requirements covering aspects such as heritage, safety, water quality and asset management to maintain the integrity and appearance of these historic structures as an important industrial legacy for Scotland. As Scheduled Ancient Monuments, the canals require particular care and attention, with the use of appropriate materials and techniques, as agreed with Historic Environment Scotland. Further, Scottish Canals must ensure that development of the network does not damage or detract from their original design.

Scottish Canals’ core statutory duties are set out in in the Transport Acts 1962 and 1968, as amended for application in Scotland only, following the transfer of the functions of the British Waterways Board in England and Wales to the Canals and River Trust in July 2012.

Transport Act 1962

In terms of Section 10 of the Transport Act 1962 Act, the British Waterways Board, now operating as Scottish Canals, is under a duty "in the exercise of their powers under [the 1962] Act to provide to such extent as they may think expedient … services and facilities on the inland waterways owned or managed by them … and to have due regard to efficiency, economy and safety of operation as respects the services and facilities provided by them".

The Transport Act 1968

The Transport Act 1968 recognised the changing role of canals and rivers at a time when their use for freight distribution was in decline and the waterways leisure industry was in its infancy. Section 104 classified the nationalised inland waterways in use at that time as either commercial (for commercial carriage or freight) or cruising (for cruising, fishing and other recreational purposes) and set out statutory maintenance obligations dependent on this classification.

The Union, Forth & Clyde and Monklands canals were not operational in 1968 and were not named in the Act. They fell into a third category described as ‘the remainder’. Under the Act Scottish Canals was required to deal with such waterways in the most economical manner possible consistent with the requirements of public health and the preservation of amenity and safety.

The rebirth of Scotland’s Lowland canals started in the 1990s. The Forth & Clyde and Union canals, closed to navigation since the 1960s, were brought back to life through the Millennium Link project which commenced in 1999 with a contribution of £33.8 million from the Millennium Commission. The three-year construction process made the two centuries-old waterways navigable once more, created the iconic Falkirk Wheel which links the two canals, and provided a catalyst for regeneration across 68 miles of Scotland.

Reclassification of Forth & Clyde and Union Canals

The Millennium Commission specified that the canals should meet navigation parameters which were in line with waterways of cruising status. Although these navigation parameters had been in place since the re-opening of the canals in 2001, The British Waterways Board (Forth and Clyde and Union Canals) (Reclassification) Order 2011 formally reclassified the Union and Forth & Clyde canals from remainder status to cruising status. The principal benefit to the waterway of reclassification from remainder status to cruising status is to place on Scottish Canals a statutory obligation, under section 105(1)(b) of the Transport Act 1968, to maintain the Canal in a suitable condition for use by cruising craft indefinitely into the future. This safeguarded the investment made by government and the Millennium Commission by placing a statutory maintenance obligation on Scottish Canals.

Statutory Maintenance Obligations

Section 105 of the 1968 Act states that, with a view to securing their general availability, Scottish Canals has a duty to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels and to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of passengers and driven by mechanical power. The 1968 Act also states that it shall not impose any duty on the Board to maintain a waterway unless the dimensions of the vessel using the waterways correspond to, or are less than, those of a vessel which used the waterway, or part of, during the period of nine months ending 8th December 1967. The Caledonian and Crinan Canals are classified as commercial waterways and the Union and Forth and Clyde Canals as cruising waterways.

Scottish Canals has an Asset Management Strategy setting out its considered approach to maintenance of the canal network which also explains how Scottish Canals will prioritise repairs across the canal network within the available budget according to the safety of the public, our users and staff followed by operability.

PE1693/G

Cabinet Secretary for Transport, Infrastructure and Connectivity’s submission of 29 October 2018

Thank you for your letter of 1 October in consideration of petition PE1693 asking for my response to the possible establishment of an independent water ombudsman and other issues raised by the petitioners.

I can assure you that Ministers and officials have been and will continue to be in regular contact with Scottish Canals at both board and officer level to discuss the opportunities and the challenges around maintaining the historic assets on the canal network. Rightly, Scottish Canals is clear that it will prioritise the safety of the general public, its staff and the surrounding environment as well as continuing to ensure that the canals can be enjoyed by a wide range of users – and that they continue to maximise economic return and growth to the surrounding communities.

Asset Management and Grant in Aid

Scottish Canals have made a significant effort in recent years to understand the overall condition of the canals and develop an Asset Management Strategy, which was published on 21 June, to prioritise use of the resources available to them for maintenance and replacement. This has identified a requirement for capital investment in the assets and Transport Scotland is working closely with Scottish Canals to monitor and understand the implications of this.

In recognition of these issues the grant in aid funding to Scottish Canals was increased from £10 million in 2016/17 to £11.1 million in 2017/18 and to £11.6 million in 2018/19, with a substantial increase of 75% in capital grant in aid funding from £2 million in 2016/17 to £3.5 million in 2018/19.

Additional funding of £1.295 million was made available in 2017/18 and an additional £1.625 million has been made available in 2018/19 to enable work to be undertaken to repair the harbour at Ardrishaig and bridges on the Forth and Clyde Canal at Bonnybridge and Twechar. Further funding is also being made available to Scottish Canals to undertake works at Fort Augustus to address the issues that the petitioners mentioned when they gave evidence.

In all of the instances noted above, concerned users were able to raise their issues directly with Scottish Canals in addition to Scottish Ministers and Government officials – highlighting the priority placed on solutions to these closures and feeding into the joint working between Scottish Canals and Transport Scotland on the Asset Management Strategy.

Scottish Canals Board

Scottish Ministers appoint members to the Scottish Canals Board. The role of the board is to provide leadership, direction, support and guidance to ensure Scottish Canals delivers and is committed to delivering its functions effectively and efficiently and in accordance with the aims, policies and priorities of the Scottish Ministers.

One of the points raised by the petitioners was the review of boating charges. I am conscious that this is an area where the board applied significant scrutiny and challenge to ensure that any increases were applied in a manner that was affordable to all users – resulting in the restriction of any increase to £100 per year.

The Board are also currently working on opportunities for wider engagement with a range of canal stakeholders over the coming months.

Places for People

I note the concerns raised about the joint venture with Places for People and more generally Scottish Canals investment and commercial activities. I would highlight that, prior to the transfer of assets, British Waterways had made investments in property with joint ventures throughout the United Kingdom. During the negotiations around the separation of the assets between England and Wales and Scotland an agreement was reached that provided Scottish Canals with a share of these investment assets which could be invested in commercial assets. Scottish Canals has been investing in commercial assets, including housing, in order to provide sustainable future income for the maintenance of the canal network. Scottish Government Grant in Aid cannot be used for commercial investments.

Scottish Canals are currently undertaking work that will help demonstrate more widely how the returns on the investments, both capital returns and ongoing revenue, are returned to contribute to the operation and maintenance of the core canal network. This will help further clarify that the wider activity undertaken by Scottish Canals is in support of, rather than in spite of, ensuring the Canals are there for future generations.

Ombudsman

The Scottish Government considered, in 2012, what would be an appropriate independent complaints process for complaints against the organisation in Scotland. The Scottish Public Services Ombudsman Act (2002) had already established a body for complaints where a member of the public suffers injustice or hardship as a result of maladministration or service failure. The Scottish Government proposed, as part of the legislative process, that the British Waterways Board, operating solely in Scotland, should come within the scope of relevant Scottish Legislation, including the Scottish Public Services Ombudsman Act.

The summary of responses to the consultation in 2011 states that the Waterways Ombudsman was supportive of this proposal and no objections were raised.

Summary

Although we have not undertaken specific analysis of the cost of the proposals to create a new Ombudsman, there is likely to be a significant resource required to set up and to run any such body.

Given the examples set out above highlighting that there are existing routes for issues to be raised, Scottish Ministers do not consider that the creation of an Independent Water Ombudsman would be the most appropriate way to address the petitioners concerns.

I would however encourage them to continue to engage with Scottish Canals and the board – and I would also be happy to arrange for Transport Scotland Officials to meet with them to discuss any concerns they have.

PE1693/H Petitioner submission of 29 November 2018 Thank you for the opportunity to respond to the 7 submissions to the Petition Committee. Can we firstly suggest that there have been omissions that would have been helpful for background and comparison purposes? Namely the Annual Report of the English Water Ombudsman 2017/18. This document notes that there were 252 referrals to it in that year. Most of the referrals were issues relating to boating. It would be a fair assumption that many of the issues would also be relevant to Scottish boaters. We believe that useful analysis and comments could also have been solicited from the pressure group “Keep Canals Alive” (KCA).

RESPONSE PE1693/A - Audit Scotland The content of Audit Scotland’s submission was limited but it is interesting to note that they identified future risks around maintenance of the canal infrastructure, investment in assets and long-term financial planning which they propose to consider in detail in their next audit. Why have they not considered these issues before? The response did look at the pricing situation as presented to them by Scottish Canals. However, they did not look at the alternative figures presented by the Boaters Group which evidenced the fact that Gerald Eves’ report did not compare like with like along with other anomalies and discrepancies. It did not comment on other aspects like the auction or concerns that Gerald Eves’ report was not independent.

RESPONSE PE1693/B - Scottish Waterways Trust In this very short submission their input focused on the use of assets. It did not look at issues in relation to living on water, policy or navigation issues. Therefore, we would argue that it was very limited in its input to the discussion. We would also have to challenge their independence as they receive their funding directly from Scottish Canals. In our opinion whoever pays the piper usually calls the tune.

RESPONSE PE1693/C - ROYAL YATCHING ASSOCIATION (SCOTLAND) This submission was valuable as it offered valid, constructive criticisms of the limitations in the petition we submitted. Their contribution widened the remit. The Keep Canals Alive (KCA) umbrella organisation have also exposed deep concerns that are not all being addressed by Scottish Canals. The Yachting Association’s expertise, as stated in their submission, is wider in terms of people who take to the water in boats, they represent 70,000 people and have a wealth of historical knowledge. They highlighted that in Scotland the canals allow coast to coast transits thereby presenting additional opportunities. The Forth and Clyde has been and still is closed in part, making transits impossible and it is suffering from a serious shortfall in maintenance. In their submission they note six years of deteriorating liaison with SC which has clearly adversely affected the operation of the canals. They note that SC are close to a tipping point and the successful Millennium regeneration is at risk of collapse and £98M of public money wasted. Drastic action is required to move SC back on track. One significant area of concern is the directional change of policy within SC from a canal body to a leisure related business which has led them to failing to comply with their statutory obligations. It is our assertion Scottish Canals requires a watchdog ombudsman to monitor the situation and respond quickly before any situation deteriorates again. The submission was very educational and widened out the discussion by giving a holistic overview.

RESPONSE PE1693/D - INLAND WATERWAYS ASSOCIATION. The comments made by the organization again stem from usage of the canals for vessel transport, leisure or residential purposes. It is interesting that they suggest an alternative to an independent water ombudsman. Historically, there was a water ombudsman which was disbanded in 2012. They ask Parliament to consider reinstating the Inland Waterways Advisory Council (IWAC) as it was able to make recommendations on matters of policy. It is interesting to note in their submission the IWA had contacted SC seven times over the last two years about concerns including asset management strategy, closure of Forth and Clyde, lock maintenance, dredging and weed cutting. With sections of the canal closed for considerable time, locks and movable bridges will deteriorate further through lack of use, leading to a knock-on effect to the detriment of boating, tourism and the environment. The IWA submission clearly states that they believe a robust process is required to hold SC to account. The canals are living waterways that have been causing concern to users and customers for the last few years. Professionals and boaters have the skills to identify concerns and while SC have very efficient PR and property development departments, it is sad that experienced water users have been given little credit or opportunity for using their unique skills and insight into the many complex areas. It was perhaps premature of the Government to abolish the Inland Waterways Advisory Council. Relying on an informal, advisory network appears to have been ineffective due to its lack of teeth and SC choosing to ignore their advice. There is a growing field of evidence to suggest the implementation of a body to liaise with SC would prevent this situation from reoccurring in the future. We appreciate the amount of work undertaken by the Inland Waterways Association and are grateful for its submission which gave significant additional food for thought.

RESPONSE PE1693/E - SCOTTISH PUBLIC SERVICE OMBUDSMAN In their submission they state that they have received eight complaints about SC from 2012 to date. They are not a regulatory body and have a very restricted remit which seriously limits what they can and cannot investigate. For example, on the question of “mooring charges” they advised that the legislation had been transferred from the England at the time of the transition which states in law that Scottish Canals can set charges without restrictions. This is exactly what happened with the recent massive, beyond inflation price increases. This resulted in many people selling their boats. It will be interesting to see if this trend continues and if so, who buys the boats? The main point is that the ombudsman is not able to review any complaint about pricing policy and prices. This is an area that might benefit from Parliament revisiting and reviewing the legislation. Furthermore, it would be helpful if the Ombudsman could give the definitive criteria for what constitutes maladministration. In section 15 of the submission, they note that the Water Ombudsman in England and Wales consists of one individual who in 2017/18 dealt with 48 enquiries and carried out 14 investigations. A similar arrangement in Scotland would go a long way to addressing concerns and would not cost too much in terms of return. We were heartened to note in section 17 the Ombudsman highlighted the lack of protection for residential boaters. Homelessness can partly be alleviated by residential boaters living on water. The Scottish Government should investigate with a view to offering greater security to residential boaters. Since Scottish Canals are using house rents as a gauge, then perhaps the same rights afforded to home owners could be afforded to residential boaters. There will always be different perspective on situations and we believe that an independent water ombudsman with specialist knowledge who has the power to ensure that SC comply with their statutory obligations and their duty of care to boaters is the best option at this point in time.

RESPONSE PE1693/F - SCOTTISH CANALS There are many points regarding this submission that could be raised but due to time and space constraints we will only focus on 4 points. 1. SC state that there are 127 residential boaters at present. Their mooring fees are set in line with property along the canal. Apart from the obvious fact that a house and a boat are 2 very different creatures, the residential boaters have no rights. SC have a closed waiting list and it has been noted that there appears to be preferential treatment for some applicants which is open to criticism or exploitation. Residential boaters take pressure off the housing market but have no security except one-year leases. We have heard anecdotally that some boaters are afraid to raise issues with SC because of the power imbalance in the relationship and fear of victimisation. 2. The Pricing Review was a very complex piece of work and has many unresolved issues. SC state that it will be reviewed every 5 years. Concerns have been raised that this will lead again to significant price increases especially if aligned to price increases in the property market. We have taken the following figures for consultation and feedback on the pricing review and allied issues from the SC website and analysed them in detail. There were 298 comments made at the time. In summary, there were 174 comments about the content of the Gerald Eve report. Other issues raised at that time were 8 concerns about boating charges, 13 concerns about canal revenue, 7 concerns about communication, 9 comments about legal agreements, 6 about monopoly situation, 28 comments about mooring charges,7 concerns about navigation/transit charges, 4 concerns about security, 11 about surcharges and 8 about the survey monkey itself. The feedback was very critical of many aspects of SC’s approach to its paying customers. We are unable to give the details, but the report makes very interesting reading as do SC’s responses and although it will not make the best sellers list, it will certainly aid sleep at bedtime. As they say, the devil is in the detail. 3. We were delighted to see in print the assertion that S.C will now honour their responsibility to maintain navigation along the canals. However, this seems to be at odds with their own asset management strategy which states that the canals will only get resource and funding if it is available. They have prioritized each canal, Caledonian at the top of the list and the Forth and Clyde West at the bottom. Is this because whoever provides the largest financial return will get the funding? At present, the Forth and Clyde canal is not fit for transit or general navigation and this will continue unless adequate funding is provided. At present, there is little opportunity for boat movements which also results in loss of revenue from transit. Significant works are also required to maintain navigation on the Union canal, e.g. Leamington Lift Bridge and Linlithgow Embankment. Until recently, there were serious concerns that SC has focused on it’s asset and land development portfolio to the detriment of canal maintenance. “Keep Canals Alive” were formed as an alliance of concerned organisations in response to the growing deterioration of the canals by the policies SC were pursuing. 4. Community Moorings Scotland aims to empower boaters by letting them develop and look after their own moorings. This will hopefully reenergise the network, bringing life and business back to the canals. At present, the pilot scheme at Narrowboat Farm has been in discussion with the legal department at Scottish Canals for two years. This should be an area for immediate action to bring it to fulfilment.

RESPONSE PE1693/G - CABINET SECRETARY FOR TRANSPORT In his submission, the Cabinet Secretary for Transport states that they get their information primarily from Scottish Canals. Information from this source is likely to be biased and limited in its content. Government are responsible for appointing the board and are likely to support them partly for that reason. It is unlikely that Government would be provided with negative information such as canal closures, money spent or not spent on maintenance, money wasted on Spiers Wharf bridge, the boats at Bowling which were not fit for purpose and other examples. An independent ombudsman would naturally have cost implications. However as stated by the SPSO this cost of one person would be reasonable and beneficial. Wage costs for some SC management positions are very high and natural wastage would free up funding. Savings could be made to accommodate an ombudsman within the framework and we believe that the cost would be recouped with prudent cost cutting. The Government have a duty of care to the residential boaters and service users who, along with other organizations, have been left with no other option but to take the matter to the Scottish Government to air grievances and concerns. It is appreciated that Government has many other demands on its time but clogged up, badly maintained waterways are devaluing the beauty and regeneration alongside the canal. The navvies who built the canal and the historical significance of the past must be the blueprint for the future. We all need to be interactive and proud of our unique waterways. It was interesting that the Minister of Transport advised that the £100 per year increase for mooring charges was to be a staggered over the next few years. This needs to be seen in context, it is reaching the position that mainly affluent people can afford to moor a boat on Scotland’s canals, thereby limiting the community aspect. It is interesting to note that it has taken SC six years to produce their asset management strategy, this is not the mark of an organisation which believes it has a duty to maintain assets for the foreseeable future. CONCLUSIONS In the evidence provided to the Petition Committee there were a wide range of opinions. While it is fair to say there has been an improvement in communication with the new management and canal maintenance in the last few months, it is equally clear that there are still areas of concern. 1 Rights for residential boaters. 2 No transparent policy on hardship cases caused in part by excessive price increases. 3 Checks and balances on Scottish Canals’ pricing policy. 4 Monopoly position of Scottish Canals in relation to ownership of moorings leads to a conflict of interest. For example, the price increases led to boat sales. SC were able to exploit its monopoly position by buying the boats for their business. 5 Maintenance of the canals and ensuring continued navigation. At present, work is ongoing. Engineering posts are being advertised on the website. 6 Money from the Scottish Government may be required to fund the backlog of maintenance. 7 Communication issues have significantly improved recently. However, it is still early days.

There will always be different opinions and views as people live, work and play. We hope we have made a case for an Independent Water Ombudsman or an equivalent body which would oil the wheels of good practice on Scottish Waterways. We would like a body where issues can be resolved at an early stage, however, we also need a neutral arbiter whose decision would be final in order to complement the work undertaken by Scottish Canals in their complex and multifaceted remit. Within our original evidence and subsequent submission in response to the responses of those asked for opinion by the panel we stated that there was a deal of optimism that changes for the better were beginning to happen with the appointment of the new CEO. That optimism has been dashed by the news that said CEO will be resigning due to a variety of issues relating to her position as a Civil Servant and the demands of the Prison Service from whom she was originally seconded temporarily. Clearly this has come as a serious blow and raised major concerns as to who is to replace her. We can only request that whoever is appointed is determined to Return Scottish Canals to their core duties as a Canal Company with compliance to their statutory duties to maintain the canals under the terms of the Transport Act 1968. Consequently it is felt that the creation of a Waterways Ombudsman or a replacement for the former Inland Waterways Advisory Council is even more essential. PPC/S5/18/19/6

Public Petitions Committee

19th Meeting, 2018 (Session 5)

Thursday 20 December 2018

PE1701: Change the law to allow adoption for people over the age of 18

Note by the Clerk

Petitioner Nathan Sparling

Petition Calling on the Scottish Parliament to urge the Scottish Government to summary amend the Adoption and Children (Scotland) Act 2007, or introduce separate legislation, to allow for the adoption of individuals who are over the age of 18, in order to respect the right to a family life enshrined in the Human Rights Act 1998.

Webpage Parliament.scot/GettingInvolved/Petitions/PE1701

Introduction

1. This is a continued petition first considered by the Committee on 27 September 2018, when it heard evidence from the petitioner. At that meeting the Committee agreed to write to the Cabinet Secretary for Justice and the Minister for Older People and Equalities, the Law Society of Scotland, the Family Law Association, Relationships Scotland, Adoption UK (Scottish Advisory Group) and the Adoption and Fostering Alliance (Scotland).

2. Written submissions have been received, and the Committee is invited to consider what action it wishes to take.

Committee consideration

3. In a joint submission, the Cabinet Secretary for Justice and Minister for Older People and Equalities recognise the importance of this matter to the petitioner, as presented in his evidence to the Committee, but state that they are “of the view that the absence of a Scottish Law allowing adult adoption does not amount to a breach of Article 8 of the European Convention on Human Rights or of the Human Rights Act 1998”. They add—

“In our view, the current legal provisions strike an appropriate balance between the interests involved.”

4. To support their view, the Cabinet Secretary and Minister outline options that are currently available to adults to provide the “sense of belonging”, including changing their name, amend official records and make arrangements for succession.

5. The ministers address the petitioner’s view that the current provisions of the Adoption and Children (Scotland) Act 2007 discriminate against people above a PPC/S5/18/19/6

certain age. They consider that the provisions are a proportionate approach to achieving a legitimate aim—

“The provisions in [the 2007 Act] are a proportionate means of providing protection for those aged under 18 years who cannot live with their biological parents, by making an adoption order transferring parental rights and responsibilities (PRRs) to the adopting parents. This transfer of PRRs ceases when the adoptee reaches 18 years of age. Setting out a regime within the 2007 Act to protect vulnerable young people while they are aged under 18 is a legitimate aim, and it would not be appropriate to amend the 2007 Act to extend its application to those aged over 18”.

6. The Adoption and Fostering Alliance (AFA) does not consider that there is anything “intrinsically problematic about the concept of adult adoption”, but outlines reservations it has of the action being called for in the petition.

7. The AFA considers that the current priority in terms of legislative change in relation to adoption is to ensure that the current law should be made fit for purpose for children in the care system, before considering any changes for adults. It states—

“Concerns about the impact on children of the current legal framework for adoption are a constant theme in our practitioner forums. Although people are aware of the issue of adult adoption, this has rarely been raised as an issue that is a priority for change.”

8. The AFA considers that there is an “overly simplistic assumption that adult and child adoption are broadly equivalent”, and notes that “the concept of adult adoption is quite different from the legal construct of adoption that has developed and come to be practiced in Scotland”. It adds—

“Our current adoption law does not operate in isolation – it is closely interwoven with a range of statutes and regulations that govern the role of the state in relation to the welfare of children and the rights and responsibilities of their parents.”

9. It considers that all of these factors and requirements “do not fit well with the quite different goal of formalising a relationship between two adults where there is no longer a child to be considered”.

10. Adoption UK is broadly supportive of the action called for in the petition, although it identifies one issue in terms of the assigning of parental rights and responsibilities (PRRs). It states—

“Adoption orders currently confer these [PRRs] automatically on to the adoptive parent in respect of the child/ren. For every parent throughout Scotland, these expire once the child reaches the age of 18. Therefore, in the absence of either rights or responsibilities, any changes to adoption legislation would be hollow in practice,” PPC/S5/18/19/6

11. Despite this concern, Adoption UK states that there is “still something to be gained” from having legal recognition of the parent-child relationship even after the child reaches adulthood. It considers that “the role of parent does not end upon this transition” and refers to other legislative examples, such as in the case of looked after children. It adds—

“Should adoption in adulthood be an option, this may provide a further opportunity for looked after children to make permanent their relationships with those who have provided their care in childhood.”

12. Adoption UK makes reference to anecdotal evidence gathered from its helpline service which it considers demonstrates “the very real need fwelt by many families to legally recognise the parent/child relationship, and the desire for this to occur in adulthood”. It further states—

“Should a change be made to allow adoption in adulthood, the practice of considering each case on its own merits should continue, and safeguards provided to prevent abuse on either side. Comprehensive assessments should not be retained as part of the process.”

13. Professor Kenneth McK. Norrie provides contextual background and notes that when adoption was first introduced into Scots Law, it did allow for adoption of adults, if only in limited circumstances.

14. He considers that the change being called for in the petition would have “quite significant legal effects”, for a range of parties including the person being adopted, their existing family and their prospective adoptive family. He argues—

“This raises the issue of the test the court would have to apply before granting an order that affected the interests of a variety of persons. The court cannot simply grant an order just because one or more persons asks for it: it must apply a test that addresses the legal effects this has on other people.”

15. Professor Norrie discusses the issue of succession rights, which he considers would “take centre stage” in cases of adult adoption. He concludes that this can more easily be addressed by “the person who actually brought up the individual now seeking to be adopted making a will in that individual’s favour”.

16. Professor Norrie summarises his position in the context of the 2007 Act and also ECHR. He states his view that consideration of change to legislation should not be made in order to achieve ECHR consistency, but because it considers the right policy decision. He adds—

“That depends on a balance of what the new law would achieve, with the difficulty of achieving it. In my view the complexities, and costs, far outweight any potential benefit.” PPC/S5/18/19/6

17. In its submission, the Law Society summarises the current legal position, covering parental rights and responsibilities and the issue of succession. It also refers to “steps that can be taken to mitigate the lack of legal status between two adults who consider themselves to be in a relationship akin to parent/child”, including through a will or by changing surname.

18. The Law Society notes that there is no international consensus over this issue, and “the position and conditions vary across different countries”. It adds—

“[…], it would be a considerable change to Scots law to permit adult adoption, and this is a reform that should not be undertaken without further debate and research.”

19. The Law Society concludes with a redommendation that research should be undertaken to address the “very complex and wide-reaching implications” of the proposal, and that this should include a “comparative study of the position in different jurisdictions”. It suggests this might be a project suitable for the Scottish Law Commission.

Conclusion

20. The Committee is invited to consider what action it wishes to take. Options include —

• To invite the petitioner to respond to the submissions received to date

• To write to the Scottish Law Commission, to seek its views on the action called for in the petition

• To take any other action the Committee considers appropriate.

Clerk to the Committee

Annexe The following submissions are circulated in connection with consideration of the petition at this meeting—

• PE1701/A: The Adoption and Fostering Alliance submission of 24 October 2018 (342KB pdf) • PE1701/B: Adoption UK submission of 26 October 2018 (111KB pdf) • PE1701/C: Cabinet Secretary for Justice and Minister for Older People and Equalities joint submission of 29 October 2018 (116KB pdf) • PE1701/D: Kenneth McK. Norrie submission of 2 October 2018 (405KB pdf) • PE1701/E: Law Society of Scotland submission of 29 October 2018 (245KB pdf)

All written submissions received on the petition can be viewed on the petition webpage. PE1701: Change the law to allow adoption for people over the age of 18 Petitioner Nathan Sparling

Date 3 September 2018 Lodged

Petition Calling on the Scottish Parliament to urge the Scottish Government Summary to amend the Adoption and Children (Scotland) Act 2007, or introduce separate legislation, to allow for the adoption of individuals who are over the age of 18, in order to respect the right to a family life enshrined in the Human Rights Act 1998.

Previous On 3rd March, I wrote to my MSPs to gain their support and ask Action them to question the Government as to their willingness to change the law. A number of MSPs wrote back in support of the move, and Kezia Dugdale MSP submitted a parliamentary question. The Government's response was that there was no plan to make the necessary changes.

Background The adoption of people over the age of 18 is currently not possible Information in Scotland due to the Adoption and Children (Scotland) Act 2007. This sets 18 as the upper limit for adoption.

Adult adoption is currently legal in countries such as Canada, USA, Japan, Germany and Spain.

It can be used by step-parents and step-children to formalise a relationship in law, to unite natural parents with children who were adopted at an early age, allow care experienced young people the sense of belonging to a family or to protect inheritance rights.

The right to a family life is protected by the Human Rights Act 1998.

Having been brought up by my Mum until the age of 12, my stepfather came into my life and raised me as his own. Unfortunately, due to the law that limits adoption to those under 18, when it came to looking into this as an option I was unable to take it forward. After this issue was covered by the press, a number of people across Scotland have been in touch to say they are in similar situation. The right to a family life is protected by the Human Rights Act 1998, and this should extend to people beyond the age of 18 and into later life. The sense of belonging and the importance of a family life brings great benefits to people, and this should be reflected in the law.

PE1701/A The Adoption and Fostering Alliance submission of 24 October 2018

The Adoption and Fostering Alliance (AFA) Scotland is an independent, charitable organisation dedicated to improving outcomes for children in care by providing support to all those working in the field of adoption, fostering and the care of looked after children.

Our purposes are:

• Promoting consistently best practice in Adoption and Fostering and supporting agencies to deliver services that enable all children in Scotland to grow up as part of a stable, loving, safe and nurturing family.

• Giving agencies, practitioners and individuals access to authoritative advice and support about adoption, fostering and permanence in Scotland from an association of individuals with a broad range of expertise, experience and skills.

• Providing opportunities for practitioners from a range of professional disciplines to share and develop best practice offering a range of direct support to agencies and practitioners within the social work, legal and medical professions, and to individuals directly involved in adoption and fostering. These will include, training, workshops, consultancy, legal advice, independent chairing of meetings and panels, placement co-ordination, disruption meetings and service and case reviews.

• Providing an independent voice on matters of adoption and fostering policy and practice.

• Accessing and interpreting research to inform ongoing relevant practice.

• Supporting agencies to achieve value for money in their provision of services for children and families

Response to the Consultation

The petition being considered by the committee calls on the Scottish Parliament to: ‘urge the Scottish Government to amend the Adoption and Children (Scotland) Act 2007, or introduce separate legislation, to allow for the adoption of individuals who are over the age of 18, in order to respect the right to a family life enshrined in the Human Rights Act 1998.’

AFA Scotland is a child focussed organisation dedicated to improving outcomes for all children involved in the care system. The views expressed by AFA Scotland reflect the extensive knowledge and experience within the organisation, but are also informed by the dialogue established through our national practitioner forums for social workers, lawyers, health professionals and the chairs of adoption panels. These quarterly forums allow us to hear about the experience of professionals from

across Scotland and to use this collective experience to help shape developments in policy, practice and the law.

The issues raised in the petition by Nathan Sparling concern the extension of adoption law so that it can be used for the new purpose of formalising and recognising the importance of a family relationship between adults. The benefits that this would bring for the individuals involved are clearly expressed in the testimony from Nathan Sparling and others. The potential risk that adult adoption could be misused for financial or other reasons, are acknowledged; it seems credible that appropriate safeguards could be introduced to address the risks and that these would not be a major issue. Similarly, the concern that adult adoption would primarily be focussed on inheritance rights or even residence status, can be addressed by ensuring that these matters are dealt with using the existing legal options available.

Although the view from AFA Scotland is that there is nothing intrinsically problematic about the concept of adult adoption, we do have reservations about the proposal to extend the current adoption law to encompass adults who wish to be adopted.

The first of these is essentially a question of priorities. AFA Scotland has argued for some time that the current law in relation to the adoption of children has serious shortcomings, with the complexities of the existing system making it hard to achieve satisfactory outcomes for many children within a reasonable period of time. Given our organisational focus on the needs of children, it is perhaps not surprising that we believe that the overwhelming priority for legislative change in relation to adoption law is for this to be made fit for purpose for children in the care system. Reviewing adoption law is complex, time consuming work, involving many overlapping areas of legislation; we are anxious about diverting attention from a focus on the children to an alternative focus on adult adoption. Concerns about the impact on children of the current legal framework for adoption are a constant theme in our practitioner forums. Although people are aware of the issue of adult adoption, this has rarely been raised as an issue that is a priority for change.

The second area of concern relates to the nature of adoption law in Scotland and an overly simplistic assumption that adult and child adoption are broadly equivalent. The concept of adult adoption is quite different from the legal construct of adoption that has developed and come to be practiced in Scotland. This has evolved over the years to have a clear focus on the welfare of children and, where necessary, the transfer of parental rights and responsibilities in order to achieve the best outcome for the child. Our current adoption law does not operate in isolation – it is closely interwoven with a range of statutes and regulations that govern the role of the state in relation to the welfare of children and the rights and responsibilities of their parents. Although the state may have a continuing role in relation to the welfare of young people older than 18 if they have been in the care system, the parental rights and responsibilities that are at the heart of adoption law, cease to exist when the child reaches the age of 18. The application of a set of laws designed to make decisions about parental rights and responsibilities in the best interest of a child, do not fit well with the quite different goal of formalising a relationship between two adults where there is no longer a child to be considered, and no parental rights or responsibilities to be exercised.

It is important not to confuse an understanding of the lifelong nature of adoption with a view that the legal issues for child and adult adoption are equivalent. In all of our work, AFA Scotland emphasises the lifelong nature of the relationship created by adoption between the three parties involved - child, birth parent and adoptive parent. We stress the importance of appreciating the continuing and lifelong issue involved rather than seeing adoption as a one-off event, and acknowledging that adoption does not cease to have significance once the child reaches the age of 18. We would also argue that one of the main arguments for considering adoption as an appropriate legal route for a child is the sense of permanence and security that it can provide.

The reservations about the proposal being considered by the committee are not intended to contest the benefits for adults of formalising their family relationship as set out so clearly by the petitioners. They relate instead to the proposed solution of applying child care legislation to an adult situation, and a concern about diverting attention away from the critical need to address the issues concerning adoption law as it relates to children.

PE1701/B Adoption UK’s submission of 26 October 2018 The current purpose and use of adoption in Scotland is primarily a provision to provide children with a stable and secure family, and this should remain its core purpose. However, we see no reason why adoption legislation cannot have a dual purpose, so long as any proposed amendments do not undermine or compromise its core purpose and/or functioning. Fundamentally this has to ensure that the individuals’ (those subject to the adoption order) safeguarding must be taken into account. One issue raised is that of inheritance planning and its relevance to the removal of the upper age limit of adoption. Adoption UK would not consider inheritance planning to be the main concern in this debate since less interventionist measures – such as the making of a Will – is sufficient for this purpose. One of the main issues that we do consider to be important is the assigning of parental responsibilities and rights. Adoption orders currently confer these automatically on to the adoptive parent in respect of the child/ren. For every parent throughout Scotland, these expire once the child reaches the age of 18. Therefore, in the absence of either rights or responsibilities, any changes to adoption legislation would be hollow in practice. This may call into question the benefits to be secured via this proposed legislative change. However, we would argue that despite this, there is still something to be gained from legally recognising a parent-child relationship for the individuals involved. These relationships are tremendously important and remain so after a child reaches adulthood. The role of parent does not end upon this transition, and given the needs of many care experienced and adopted young people, the parental caring responsibilities will go on well into adulthood and beyond the age of 18. This is already recognised within legislation in the case of looked after children, who may now stay in caring placements until the age of 21, and access aftercare services until the age of 25 in cases of need. Should adoption in adulthood be an option, this may provide a further opportunity for looked after children to make permanent their relationships with those who have provided their care in childhood. Anecdotal evidence gathered from our helpline service can confirm the value and power of step parent adoption, as is the focus of the argument from the named petitioner. We receive many enquiries on this topic, from parents but also, on occasion, from young people in their late teens or young adulthood. These enquiries show the very real need felt by many families to legally recognise the parent/child relationship, and the desire for this to occur in adulthood in cases other than that of the individual petitioner. Should a change be made to allow adoption in adulthood, the practice of considering each case on its own merits should continue, and safeguards provided to prevent abuse on either side. Comprehensive assessments should not be retained as part of the process I would like to reiterate that legislative changes in order to recognise such relationships should only be pursued if such changes do not, in any way, undermine or compromise the current purpose of adoption law in Scotland. Adoption is life altering, and life long, and we are in support of this only when it has been duly considered and established to be the best option or outcome for the individual(s) involved. PE1701/C Joint submission from the Cabinet Secretary for Justice and the Minister for Older People and Equalities of 29 October 2018 As detailed in the recently revised National Performance Framework, our vision is a society which treats all our people with kindness, dignity and compassion, respects the rule of law, and acts in an open and transparent way. This vision has been developed together with the people of Scotland to reflect our values as a nation and the aspirations we hold for our future. It is underpinned by 16 National Outcomes, which provides a focus and direction for policy action and includes our commitment to ‘respect, protect and fulfil human rights and live free from discrimination’. Whilst recognising the importance to the Petitioner of obtaining legal recognition of his relationship to his stepfather, we are of the view that the absence of a Scottish Law allowing adult adoption does not amount to a breach of Article 8 of the European Convention on Human Rights or of the Human Rights Act 1998. In our view, the current legal provisions strike an appropriate balance between the interests involved. The state in Scotland does not stop adults forming relationships and friendships, nor does it prevent the sense of belonging encompassed by the mutual enjoyment by a stepparent and step-child of each other’s company. As the Committee is aware, adults can already take steps to change their name, have official records amended and to make arrangements for succession, all which respect an individual’s right to private and family life. In Committee, the Petitioner mentioned that a small number of countries supported adult adoption. There are, as the Petitioner has acknowledged, differences in how this is approached across the world. In some countries, the adoption is only competent for a step child who has lived as a child in the family for 5 years, and in others the law is in place to allow the future care of a person who is dependent due to substantial health issues. In others there are requirements that those such as family members beyond the adopter and adoptee must also consent. It is against this varied background that Human Rights Laws allows countries scope to make their own adoption laws without breaching article 8 rights. The Petitioner states that the current law with regard to formalising a parent-child relationship discriminates against people over a certain age. However, although age is a protected characteristic under the Equality Act 2010, the 2010 Act allows for less favourable treatment on the ground of age if it can be shown to be a proportionate means of achieving a legitimate aim. The provisions in the Adoption and Children (Scotland) Act 2007 are a proportionate means of providing protection for those aged under 18 years who cannot live with their biological parents, by making an adoption order transferring parental rights and responsibilities (PRRs) to the adopting parents. This transfer of PRRs ceases when the adoptee reaches 18 years of age. Setting out a regime within the 2007 Act to protect vulnerable young people while they are aged under 18 is a legitimate aim, and it would not be appropriate to amend the 2007 Act to extend its application to those aged over 18 for the reasons set out in the following paragraphs. Adoption is sometimes used by step-parents to legalise a family unit for children who are under 18 at the time of application but we do not consider that the same route is necessary for adults given the voluntary nature of adult relationships. The evidence given at Committee by the Petitioner and Mrs Dempster exemplifies this, with both families embracing the relationships formed without the need for legal orders. Further in Scotland, when you adopt someone under 18, that has the effect of extinguishing the legal relationship between the biological parent and child and the adoption process creates a new parent-child relationship. Many consequences flow from that, including issues relation to inheritance, as identified by the Committee. A child may be entitled to inherit from their parent’s estate and, conversely, where a child dies before their parent, the parent may be entitled to inherit from their child’s estate. On adoption, these inheritance rights cease to exist in the biological parent/child relationship and only apply in the adoptive parent/child relationship. These consequences have to be thought about in the very different context of adoption in relation to people over aged 18. For such people, there are additional complexities. There are unfortunately, adults who may be vulnerable to being exploited, if there were to be adult adoption processes based on the Adoption and Children (Scotland) Act 2007. It would therefore require a newly designed, potentially more complex court process and one issue we would have to consider would be how to make sure all those involved understood the consequences of a proposed adoption and were capable of consenting to it. The birth parents of an individual may also have an interest in opposing any action. All of those issues have to be balanced against what is sought to be achieved and we are of the view, in that context, that there is no requirement to change the law in relation to adult adoption. With regards to the issue of public records raised by the Petitioner in the event that he were to be married in the future, the marriage register has space for the details of the person’s legal parents. It would be disproportionate in our view for an adult to be adopted simply to enable a public birth record to be amended or updated. The appropriate route would be for legislation to prescribe the new form, and changes would be needed to the IT systems used by NRS and local authority registrars. There would be costs in relation to any changes of this nature and present, there are no current plans to change the marriage notice form or the birth register. If an individual wished to reflect additional parental adult relationships on a marriage certificate then it is worth raising this with the National Registers for Scotland (NRS). For the reasons outlined above, we are of the view that current law does not breach the Human Rights Act 1998, nor does it discriminate against people over a certain age regarding formalising a parent-child relationship. Furthermore, there are numerous complexities to consider, and in our view, the principles which underpin the rules about the adoption of children do not sit well with an addition or extension to the current Adoption and Children (Scotland) Act 2007 1

PE1701/D

Kenneth McK. Norrie, Professor of Law at the University of Strathclyde submission of 2 October 2018

Adoption of Adults: Conceptually Competent but Practically Pointless

This short paper is a response to Public Petition PE01701, by Nathan Starling seeking a change of the law to allow the adoption of persons over the age of 18 years. It aims primarily to put the debate into an historical perspective, as well as to draw attention to various issues that would have to be addressed if the political decision were made to extend our adoption law in this way.

Scots Law Originally Allowed Adoption of Adults

It is an almost forgotten fact that, when adoption was introduced into Scots law by the Adoption of Children (Scotland) Act, 1930, the legislation allowed, if in very limited circumstances, the adoption of adults. Section 10 of the 1930 Act dealt with what was then (and for some time thereafter) called “de facto adoptions”, that is to say informal arrangements by which one family would take in a child from another family in order to bring up the child as their own. Often this was a result of family bereavement (including parental death in the First World War) or desperate poverty; often it involved children subject to private fostering arrangements (regulated by the Children Act 1908); and sometimes it was the result of deliberate familial confusion (to hide the “shame” of unwed motherhood). Whatever the reason, there were substantial numbers of children in the 1920s and earlier who were brought up by persons other than their natural parents, who acted in all important respects as if they were.

After 1930, it would be possible for people bringing up children in these circumstances to seek an adoption order by the new process introduced in that year. But it was considered by Parliament that the court should have the power to deal with pre-existing arrangements by a simplified process: in effect the aim was to give retrospective legal effect to de facto adoptions that were already in existence on the day formal legal adoption was made available by statute. This effect could be given to these informal relationships even after the child had reached adulthood. This was achieved by an application under s. 10 of the 1930 Act, which allowed the court to 2 make an order authorising the adoption of any person who had been at the date of commencement of the Act (1st October 1930) in the custody of and being brought up, maintained and educated by any person or two spouses as his, her or their own child, so long as, on that date, the child was under the age of 21: the age of the adopted person at the time the order was sought was irrelevant. In moving the Second Reading of the (English) Adoption of Children Bill 1926, which contained an identical provision, Mr Galbraith MP described the effect and justification for what became section 10 (of both Acts) as follows:

Clause 10 enables the Court to authorise and to sanction de facto adoptions, and in effect it comes to this, that in any case where a child has in fact been adopted and kept and maintained by any person for two years, the Court can authorise and ratify that adoption without obtaining the consent of the person who has given up the child in a case where the Court is satisfied that it is unnecessary or desirable that the consent of that person should be obtained. I believe, so far as my experience is concerned, this is a most desirable provision. I have received, since I put down the Bill, a considerable number of letters from persons who have in years past adopted children, who speak of the way in which they have come to feel great affection for the children, and the children have begun to feel great affection for them, and they have pointed out the haunting fear they have had lest the natural parents, who have taken no interest in the children, may interfere and attempt to take the children away, and I believe the Clause which enables de facto adoption to be sanctioned is a good and desirable provision.1

There was a surprising number of cases under s. 10 of the Scottish Act – and, curiously enough, none at all (at least, none reported) under the English Act. In G, Petitioner2 a petition was presented to the Court of Session under s. 10 of the Scottish Act craving authority “to adopt a child who had been in the custody of, and de facto adopted, brought up, maintained and educated by, the petitioner, since a date more than two years prior to the commencement of the Act, and was at the date of the petition still residing with, and being maintained by, the petitioner.” The “child”

1 HC Deb. 26th February 1926, vol. 192 col. 925 2 1939 SC 782. 3 in this case was over 21 at the date of the application and the court granted the adoption order sought, without issuing any judgment. The same result was reached in K, Petitioner3 where the person being adopted was 37 years old. The primary motivation of the petitions in most of these cases was the legitimation of the adopted person (an important social – and indeed, at the time, legal – status), which was the sole remaining effect of an adoption order once the upbringing powers were no longer needed. But in K, Petitioner, the benefit was more substantial as the adoption order gave access to the benefits in a superannuation scheme which included adult children. One unsuccessful case was RB, Petitioners4 where the petition was refused because the child had not resided with the petitioners for the two years before the commencement of the 1930 Act, she coming into their care on 11th November 1928 and the Act commencing on 1st October 1930. She was six weeks short of the requisite period.

The procedure under s. 10 constituted a quite separate code from that contained in the rest of the Act, and many of the conditions applicable to adoption orders under s. 1 – such as the condition that the adopted person be under 21 – were held inapplicable to orders under s. 10. That the adoptee be unmarried was not a requirement under s. 10 (though it was under s. 1) and so in L, Petitioner5 a 31 year old married man with four children of his own was able to be adopted under the terms of s. 10 by his mother (who had given birth to him while unmarried). Also, the requirement that the parties be resident in Scotland at the date of the order was held not to apply to s. 10 adoptions.6 And the court could make an order under this provision if the applicant were male and the child female (otherwise forbidden in the 1930 Act), and indeed even without the consent of the parent or guardian (if it was considered by the court to be just and equitable and for the welfare of the “child” not to require that consent).

Section 10 was eventually abolished by the Adoption of Children Act 1958 and with it the power of the Scottish court to make an adoption order over an adult.

3 1949 SC 140. 4 1950 SLT (Sh Ct) 73. 5 L, Petitioner 1951 SLT 270 (IH), overruling F, Petitioner 1951 SLT (Sh Ct) 17. 6 H, Petitioners 1952 SLT (Sh Ct) 15. 4

Adoption of Adults Today

The Legal Effects of Adoption

It is important to remember that when adoption was introduced in 1930, its legal effects were very much more limited than they are today and the order amounted to little more than a means of securing the custody of the child from challenge. When adults were adopted, that consequence was of course no longer relevant, and adoption was first and foremost a mechanism for legitimising the so-called “illegitimate” person.

The other consequences that characterise adoption today came later: claims for damages for wrongful death came in the 1940s, consequences in terms of forbidden degrees came in the 1950s, and consequences in the law of succession came in the 1960s. Since 1975, indeed, Scots law has adopted the “legal transplant” model, whereby for virtually all legal purposes the effect of adoption is to replace one set of parents with another set of parents. Adoption creates a new parent-child relationship, but at the same time it also destroys the existing parent-child relationship. Legitimation is no longer a relevant issue and the effects of adoption include not only a transference of the parental responsibilities and parental rights to bring up the adopted child but also lifelong consequences for the parent-child relationship, the most obvious being in relation to succession on death of either adopter or adoptee.

It follows that if adoption of adults were reintroduced into Scots law its legal consequences would be very different from what they were under the 1930 Act and would include the life-long consequences such as succession, forbidden degrees of relationship (for incest and marriage/civil partnership), and damages for wrongful death. (This last would not confer new benefits on persons brought up by someone other than their parents since they can presently claim in any case on the ground that they were treated as a child of the family). It would not include legitimation since the concept has disappeared, nor upbringing powers since these stop when the child becomes an adult.

The Test for Making an Adoption Order

The adoption order today would therefore have quite significant legal effects, not only for the adopted person but also for BOTH the adopter (and their family) AND the adopted person’s existing family – effects that were not had under the 1930 Act process of adopting adults. This raises the issue of the test the court would have to apply before granting an order that affected the interests of a variety of persons. The court cannot simply grant an order just because one or more persons asks for it: it must apply a test that addresses the legal effects this has on other people.

With adoption of children, the test is clear and has remained (virtually) the same since 1930: the order is justified by the welfare of the child. In today’s world there are two main circumstances in which the Scottish court is asked to apply this test: (i) at the culmination of a child protection process when it is established that it will never be safe to return the child to his or her birth family, and (ii) on family reconstitution when a step parent (otherwise a social and not a legal relationship in Scots law) acts in fact as a parent seeks to replace the (non-resident) parent for the purposes of exercising parental responsibilities and parental rights. In both cases it is considered that full integration into the child’s new family can be achieved only by giving the order lifelong consequences, and only by removing parenthood from the birth parents. But the important point is that the order will negatively affect the existing legal interests of the birth parents: however, this is justified by the need to ensure the welfare of the child (and the assessment that nothing short of adoption will do).

With adoption of adults questions of upbringing do not arise, and the issue of succession rights – which are completely overshadowed by the child’s welfare with adoption of children – takes centre stage. What test would be appropriate, what justification is there, for the court to make an order whose primary legal effect would be to alter lines of succession? These effects are significant and potentially wideranging. Adoption not only excludes succession claims by and from birth parents but also by and from other birth relatives (siblings, grandparents and the like). It confers succession rights on the adoptive parents, but at the same time it reduces the succession rights of the adoptive family members in the adoptive parents’ estates (because their claims will be diluted by allowing the adopted person to share the 6 claim). The justification for making an adoption order over a child (the welfare test) addresses the interests of those who lose out – by requiring the court to hold that

“nothing else than adoption will do” to further the child’s welfare than the removal of their rights. Likewise, the test for making an adoption order over an adult must reflect the legal consequence for other people if it is to satisfy a challenge under the ECHR (for example under A1P1 protection of rights of property). It is difficult to envisage what an appropriate test for the granting of an order with these potential effects would be.

The Issue of Consent

It might be argued that no test at all is necessary so long as everyone whose interests are potentially affected consent to the order. With adoption of children, the primary legal effect being to transfer parental responsibilities and rights, the birth parents – who otherwise hold these rights – must consent to that transfer (or have their consent dispensed with, often on welfare-related grounds). With adoption of adults, consent would need to be sought from every blood relation who may conceivably succeed on the adopted person’s death, or whose rights are diluted by the adopted person’s claim on the death of an adoptive parent. A new law could of course allow for the dispensation of consent – but it would need to develop a test that was proportionate to what the effect of the law was.

Conclusion

Succession can with far greater ease – and with far less expense in terms of parliamentary and court time – be dealt with by the person who actually brought up the individual now seeking to be adopted making a will in that individual’s favour.

But I suspect that the petitioner is not seeking a change in the law to deal with possible succession consequences. I suspect his motivation is found in a much more emotional desire to be socially recognised as having a particular relationship with another person. However valid that feeling is, the law has no role in protecting it. I consider it highly unlikely that the European Court of Human Rights would find a breach of article 8, with or without article 14, in Scots law’s failure to make provision for adoption of adults, for two reasons. First, the European Convention deals with real and substantive legal effects and not social emotions. Secondly, Scots law does 7 not inhibit the development of a personal relationship – what it withholds (automatic succession rights) it allows individuals to achieve by their own actions (ie making a will). The ECHR does not require states to do what they allow individuals to do.

Given that, the Scottish Parliament should make its decision on whether to reintroduce adoption of adults not on the basis that it has to in order to achieve ECHR consistency, but because it considers it the right policy decision. That depends on a balance of what the new law would achieve, with the difficulty of achieving it. In my view the complexities, and costs, far outweigh any potential benefit. PE1701/E

The Law Society of Scotland’s written submission of 29 October 2018

The Law Society of Scotland is the professional body for almost 12,000 Scottish solicitors. We seek to influence the creation of a fairer and more just society and are strongly committed to our statutory duty to work in the public interest and to both protect and promote the rule of law.

Current legal position

The purpose of adoption in Scots law is firmly based in the concept of the welfare of the child. The legal framework for adoption in Scotland is the Adoption and Children (Scotland) Act 2007. Adoption orders can be made for those under the age of 18, or over the age of 18 if the application was made when they were under 18, and only if that person is and has never been married or in a civil partnership. The effect of an adoption under this Act is for the adopted person to be treated in law as a child of the adopter or adopters, and not as a child of any other person (with limited exceptions). This has implications in a wide range of areas, including parental rights and responsibilities, succession, and the forbidden degrees of relationship for the purposes of marriage and incest.

There are steps that can be taken to mitigate the lack of legal status between two adults who consider themselves to be in a relationship akin to parent/child. For example, succession rights can be established through a will (though any legally recognised children will continue to have legal rights to the estate), the ability to care for an individual in the case of incapacity can be established through a power of attorney, and an individual can change their own surname to reflect a family relationship.

Proposal for reform

There is no international consensus over the issue of adult adoption, and the position and conditions vary across different countries. However, it would be a considerable change to Scots law to permit adult adoption, and this is a reform that should not be undertaken without further debate and research. Issues that require to be considered and balanced include the need to keep the welfare of children as a paramount focus, the need to safeguard vulnerable adults against exploitation, and how to address the potential implications of ‘generational fluidity’ and changing degrees of relationships. In any consideration of reform, there is a need to fully and openly explore both the purposes and the implications (legal and social) of reforms in order to avoid any unintended consequences.

Recommendation

Given the potentially very complex and wide-reaching implications of changing the law to allow the adoption of individuals over the age of 18, we would recommend that research should be undertaken before such a proposal for reform is progressed, including a comparative study of the position in different jurisdictions. This may be a suitable project for recommendation to the Scottish Law Commission. PPC/S5/18/19/7

Public Petitions Committee

19th Meeting, 2018 (Session 5)

Thursday 20 December 2018

PE1704: Improve targets and outcomes for autistic people in Scotland

Note by the Clerk

Petitioner Duncan MacGillivray

Petition Calling on the Scottish Parliament to urge the Scottish Government to summary ensure that an agenda of real and meaningful change for autistic people is pursued by introducing the following targets and outcomes by 2021:

• That every person in Scotland going through an autism diagnostic procedure will be assessed within a calendar year and receive a statutory services assessment from a qualified social worker as an integral part of this process, within twelve months from the date of their initial referral.

• That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

• That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

Webpage http://parliament.scot/GettingInvolved/Petitions/PE01704

Introduction

1. This is a continued petition. The Committee considered the petition at its meeting on 27 September 2018. At that meeting, the Committee agreed to write to— • the Scottish Government; • local authorities; • the National Autistic Society; • the Autism Network Scotland; • relevant teaching unions and unions representing non-teaching staff working in schools.

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2. The Scottish Government published “The Scottish Strategy for Autism: Outcomes and Priorities 2018-2021” in March 2018. The publication updated “The Scottish Strategy for Autism” to focus on specific priorities for the next three years. The petitioner is of the view that the update “failed...to commit to real, meaningful and measurable improvement for autistic people in Scotland and that they have been subjected to yet more vague and largely meaningless rhetoric.”

3. Links to responses are shown at the end of this paper (the petitioner has not yet responded to all the submissions). A table of extracts of responses from local authorities and health and social care partnerships is included as an annexe to this paper.

4. In its submission, the National Autistic Society Scotland (NASS) explains that autism is a spectrum condition and explains that because of this, people with autism have differing needs, some autistic people are able to live relatively independent lives, while others will need a lifetime of specialist support. This is reflected in the varied responses from organisations to the actions called for in the petition.

Scottish Government

5. In its response, the Scottish Government said—

“Firstly, following an engagement exercise last year the Scottish Government published a comprehensive analysis of that engagement and refreshed its priorities; they were published in March 2018. This publication was jointly agreed with Ministers and COSLA. It is recognised that a concerted effort across all sectors is required. Secondly, in the Programme for Government we reiterated our commitment to transforming the lives of autistic people and addressing the inequalities they can face throughout their lives. The refreshed priorities focus on ensuring people with autism live healthier lives, have choice and control over the services they use, and are supported to be independent and active citizens. We are committed to delivering those priorities by 2021.”

Diagnosis Waiting Times

6. The proposal in the petition is that every person in Scotland going through an autism diagnostic procedure will be assessed within a calendar year and receive a statutory services assessment from a qualified social worker as an integral part of this process, within twelve months from the date of their initial referral.

7. The National Autistic Society Scotland (NASS) said—

“Research from Goldsmith’s University suggests that, on average, children wait 3.6 years to receive an autism diagnosis after first seeking professional help, while adults wait an average of two years.”

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“Currently in Scotland there are no autism-specific diagnosis waiting times targets. The Scottish Intercollegiate Guidelines Network (SIGN), the body which develops clinical practice guidelines for the NHS in Scotland, do not include a recommendation on waiting time targets for diagnosis, as waiting times policies are set by the Scottish Government. The National Institute for Health and Care Excellence (NICE) performs a similar function to SIGN for England (and to some extent for Wales and Northern Ireland), and makes clear that no patient should have to wait longer than three months between a referral for diagnosis and first appointment.” (The Scottish Government said in its response “SIGN has…produced a renewed autism guideline. The guideline provides recommendations for best practice in the screening, surveillance, diagnosis, assessment and clinical interventions for children and young people with ASD. NHS Boards should be following these guidelines in delivering autism services”)

8. NASS pointed to the Autism Achieve Alliance (AAA) report in Scotland published in 2014 which underlined a wide variation in diagnosis waiting times across the country. It stated—

“We…believe that the Scottish Government should also commit to recording, publishing and monitoring autism diagnosis waiting times in every area.”

9. And went on to add that it had already recommended that—

“…in the final phase of the Scottish Strategy for Autism, which was refreshed in March 2018, the Scottish Government should develop a Local Delivery Plan standard for autism to join the many others that are currently in place…This would require local authorities and health boards to devise a local plan which would include how they would develop and maintain a diagnostic pathway. We believe it should contain a target that no patient should have to wait longer than three months between a referral for diagnosis and first appointment.”

10. Autism Network Scotland commented—

“…this Petition is largely asking for direct services to individuals and families and not the underpinning support structures. Autism specific statistics are not always held centrally, in that categories are not subdivided in this way but those of us who work in this area know anecdotally that some individuals are waiting longer than a year to be diagnosed and that the stages from referral through to diagnosis and then support can all have setbacks. We also know that the qualification level of staff involved in assessment of need that follows diagnosis varies with some practitioners being informed and others less so.”

11. The view of the Educational Institute of Scotland (EIS) is that—

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“…clearly early diagnosis is helpful, and the current lengthy delays between referral, diagnosis and receipt of post-diagnostic support are unhelpful to the child or young person, their family, and those in their learning establishment.”

Local authority and Health and Social Care Partnership responses

12. A table with extracts of responses from local authorities is included as an annexe to the paper. On balance, the responses received seem to suggest that “every person in Scotland going through an autism diagnostic procedure will be assessed within a calendar year” as requested in the petition is not widely supported. Responses suggest that different local authorities take different approaches to assessment, tailored to their area, to demand, to the needs of the person or child being assessed and taking account of the resources available. Respondents also identified potential barriers to a requirement for an assessment within a calendar year.

“The assessment target of within a calendar year would only be realistic if there were enough health professionals to meet this demand.” (Angus Council and Angus Health and Social Care Partnership)

“…it is acknowledged that recruitment issues do contribute to diagnostics and waiting lists.” (Argyll and Bute Council and Argyll and Bute Health and Social Care Partnership)

“If on screening, it is established that an individual would benefit from support other than that provided by statutory services, it would seem counterintuitive to proceed with a social work assessment. Individuals, whose initial screening indicate that they require a full assessment, would already be offered this and in a much tighter timescale than twelve months. There would also be an additional demand on staffing resources, which would be detrimental to people who are more at risk, in terms of increasing timescales for their assessment process.” (Aberdeenshire Health and Social Care Partnership)

“It has already been determined that referrals for autism diagnostic procedures take, on an average 10 hours to assess, frequently with very considerable individual variation. This is obviously an extensive time commitment required by professionally-qualified staff. No one test is appropriate for all young people and each individual referral may be assessed using a different combination of tools.” (Glasgow City Council)

“Setting a year as a limit is not the change that we feel would be most appropriate to resolve these concerns.” (Stirling Council)

“Additional support for children and young people with Autism in mainstream schools is provided through adaptations to the learning environment, which may include support assistants. However, a sole

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focus on this form of support is limiting, and does not take into account the wider evidence base relating to the impact of learning/teaching assistants.” (Dundee City Council)

“This is an aspirational target but would certainly support children and families who rely on a diagnosis to access funding and other resources.” (Scottish Borders Council)

“We agree that diagnostic assessments should be completed within a calendar year.” (East Renfrewshire Health and Social Care Partnership)

“We feel this is an appropriate priority.” (Aberdeen City Council) The Scottish Government 13. The Scottish Government’s response states—

“Diagnostic waiting times have always been a challenge for NHS Boards and since 2011 there have been strategy investments in NHS Boards to improve diagnostic waiting times. This continues to be a challenge in terms of capacity and resource…The Scottish Government has committed to continue to work with NHS Boards and special boards to build the knowledge of autism amongst staff to improve access to services for autistic people and reduce waiting times by sharing improvement initiatives and sharing best practice through Improvement Programmes and the Autism Knowledge Hub. There have been no specific discussions on a waiting times target but a recognition that varying waiting times across Scotland are too long and should be improved. There is a recognition that this can’t be achieved solely by one strategy and that work across government is required to make the necessary improvements in services for example Mental Health services, including CAMHS.”

14. In directly addressing the call for every person in Scotland going through an autism diagnostic procedure to be assessed within a calendar year, the Scottish Government said—

“The diagnosis of autism spectrum disorder is based on a clinical assessment. NHS Boards refer through different local pathways, some people with autism and a learning disability are assessed through Learning Disability Services, and in some Boards specialist autism diagnostic services are available and in some appropriate referrals are made to Mental Health (MH). MH services are clinically triaged according to severity and risk and go onto a waiting list to see an appropriate mental health professional. The referrals that go to a specific autism mental health service may have a standardised assessment that differs from the more generic mental health assessment done in a community mental health team or indeed a primary care team. There is no one size fits all – so applying an assessment standard of within a calendar year does not make clinical

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sense. All appropriate and accepted referrals to a community mental health team would be normally seen in a matter of weeks. Referrals for psychological therapies are subject to an access standard of 90% within 18 weeks and this is monitored centrally by ISD.”

Statutory services assessments

15. Autism Network Scotland said—

“We believe that autistic children, young people and adults should get an assessment as quickly as possible after this is requested, and that this assessment must be carried out by someone with sufficient training in autism. Our Count Us In report found that 50% of the autistic people we spoke to said that professional understanding of autism is poor or very poor. Ensuring that assessors have a good understanding of autism and are appropriately trained to develop person-centred plans for autistic people will help address some of the issues autistic people currently face when going through this process.”

16. The Educational Institute of Scotland (EIS) offered this explanation in relation to assessments—

“There are far too few Educational Psychologists, which hinders the assessment of needs. The number of EPs practising in Scotland fell by a tenth in the three years from 2012 to 2015…We would link this to the 2012 Scottish Government decision to remove bursary funding from the course…Despite a recent announcement of new investment, the only university in Scotland due to offer educational psychology training next year has said it will not be running the course, meaning that there may be no new entrants to the profession in 2021.”

Local authority and Health and Social Care Partnership responses

17. Based on the responses received, local authorities did not support the call for a “statutory services assessment from a qualified social worker as an integral part of this process”. Some cited existing legislation which imposes a statutory duty upon the local authority to assess the needs of all children in need/affected by a disability, others cited the financial implications of this call and others suggested that not every family would necessarily welcome or require the involvement of social work services.

“It would not be feasible, nor proportionate, for all individuals presenting with low level needs to be assessed by a qualified social worker as there are insufficient resources to do this and it would have an impact for people of greater need/risk/complexity who require the level of skill held by a qualified social worker.” (Angus Council and Angus Health and Social Care Partnership)

“Under the ASL Act there is a requirement to ensure that the provision of support is directed to the needs of each child whether or not they

PPC/S5/18/19/7 have a specific diagnosis. This would include Looked After Children, those with complex learning needs or a disability, those with an autism diagnosis and those who may have an autism spectrum disorder but do not have a diagnosis.” (Argyll and Bute Council and Argyll and Bute Health and Social Care Partnership)

“The stipulation that this is a social work assessment seems restrictive and contrary to the interests of an autistic adult. During the diagnostic process the team involved will gain good insight into an individual’s strengths, and areas where the person may require support…The right to a social work assessment is already a statutory requirement, however there is an element of screening in this process to ensure that Social Work Services have an approach that promotes the independence of an individual and makes best use of resources.” (Aberdeenshire Health and Social Care Partnership)

“Whilst aspirational, we would question how realistic it would be to expect statutory services assessment to be completed within 12 months of initial referral.” (Glasgow City Council)

“Children in North Ayrshire with Autism do have their needs assessed through our staged intervention and Child's Plan process. This process acknowledges their autism and identifies the effect it has on their lives. A number of specific targets based on wellbeing are set in response to the child's individual needs and support is allocated from a core budget to support them.” (North Ayrshire Council)

“A services assessment from a children and families social worker is not always wanted by individuals or families following diagnosis. Clear signposting to services and partnership approaches to support, in line with existing legislation – ASL Act and CYP Act make this support available to individuals as and when it is required. There is an existing statutory responsibility to assess subject to the Social Work (Scotland) Act 1968, Section 12.” (Stirling Council)

“All current employees have been audited in relation to their skills and qualifications profile and the majority have undertaken the Autism module within their training.” (Dundee City Council)

“We would support the proposal for training opportunities to focus on autism, however if a mandatory qualification is introduced, there would need to be clear guidelines and access to appropriate training to enable the present workforce to develop at a suitable pace. There are also funding implications.” (East Ayrshire Council)

“We disagree that all individuals being assessed for autism should be assessed by a qualified social worker. Children may benefit from a wellbeing assessment consistent with the national practice model within a child’s plan with resources put in place to support wellbeing and curriculum access, however, there would be challenges meeting

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and maintaining this target. These children do not always necessarily require social work intervention. Many autistic adults are able to manage their lives without the need for statutory services.” (East Renfrewshire Health and Social Care Partnership)

“Not every family would necessarily want or require the involvement of social work services. Additionally, it would not be essential in all cases for a qualified social worker to undertake an assessment - a care coordinator/family support officer or equivalent post may provide a more workable solution.” (Aberdeen City Council)

“With regard to a ‘statutory services assessment’ from a qualified Social Worker, this implies that ‘as an integral part of this process’ parent carers of autistic children would waive their right to request assistance under Sections 22, 23 and 24 of The Children (Scotland) Act 1995, and have such an assessment imposed upon them after an autism diagnosis was made. Current legislation imposes a statutory duty upon the local authority to assess the needs of all children in need/affected by a disability under Sections 22 and 23 of The Children Scotland Act 1995 if requested to do so.” (South Lanarkshire Health and Social Care Partnership)

The Scottish Government

18. The response from the Scottish Government explains—

“Autism spectrum disorder represents a spectrum of need and complexity – with some severe disabled people at one end and others who function well with minimum difficulty. Social work worker assessment is not appropriate, nor necessary for many so it would be inappropriate to make it a requirement of autism spectrum assessment and management… Whilst Social Workers would not be involved in diagnosis they do have the responsibility to assess needs and to care plan and to arrange care where needed – including Self Directed Support. This responsibility is identified in the Community Care and Health (Scotland) Act 2002, Self-Directed Support (Scotland) Act 2013, the Children’s (Scotland) Act 1995 and the Children & Young People Act 2014. The primary legislation for all of this is the Social Work (Scotland) Act 1968. It is the responsibility of Health and Social Care Partnerships to undertake assessments of need and make care plans, where necessary.”

Supporting autistic children and young people in education

19. The EIS provided a comprehensive response to this point. In its submission, it said—

“Whilst we support inclusive education in principle, and believe that children, schools and learning communities derive many benefits individually and collectively from having diverse learning populations,

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the current approach to mainstreaming is not working. Our members have described it as ‘mainstreaming on the cheap’ and ‘inclusion without resources’. This is a fundamental issue which must be addressed. An added challenge is that there is a range of need across the autism spectrum; the support/environment one pupil requires can be quite different to the needs of another with an ASD diagnosis…It is vital, therefore, that special schools, with appropriate teacher-pupil ratios, continue to exist and to be valued. The presumption of mainstreaming does not preclude some children with autism being educated in special schools where that would better meet their needs and be less disruptive to other learners.”

20. The EIS, in respect of the petitioner’s ask that children have their needs met by an ASL assistant, added—

“This ask, while worthy in its intentions, overlooks the role of classroom and ASL teachers, who, when well supported in an environment that is properly resourced, play a vitally important role in meeting the needs of children with autism.”

“We believe that an issue which requires further attention is the undervaluing of the roles of both ASL Teachers and ASL Assistants, which in part we would suggest is linked to a societal undervaluing of work which is predominantly carried out by women, often (wrongly) perceived as something that ‘anyone could do’, where the skills involved are not fully understood or respected…We have anecdotal evidence that ASN teaching staff in schools are often used as supply, especially as the cover crisis worsens, and their specialist skills and expertise are therefore not being deployed as they ought to be.”

21. The EIS identified some of the barriers that it believes are hampering the current system—

“Beyond recognised qualifications, we are aware that there are some good resources which can bolster teachers’ knowledge of autism, e.g. the autism toolbox, although this might now need a refresh. However, teachers lack the time to take part in all the self-directed personal study that they wish to. They also lack the time to reflect on how to change their practice; and to then make the differentiated curricular resources that are needed to meet the needs of autistic children, especially as autism can present so differently in every child on the spectrum and thus there is not an appropriate ‘one size fits all’ approach. Personalisation of learning resources requires time that is scarcely available in the current teaching climate. Concerted efforts must be made to address teacher numbers and workload.”

22. On the issue of ASL professionals being part of a mandatory registration process, the EIS stated “We are not opposed to the registration of other professionals in a suitable, separate body. We would reject any attempts to

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create an overarching ‘education workforce council’ or similar, as was mooted by the Scottish Government as part of its education reform agenda.”

23. The Autism Network Scotland commented—

“The level of change that the Petition requires would need considerable additional resource. The recent publication of the Microsegmentation Report1 which quantifies economic costs of autism is a useful reference point here in that it highlights per capita costs for autism and other conditions such as dementia where the spend is shown to be considerably higher.”

24. In respect of classroom support and qualified staff, the National Autistic Society Scotland said—

“According to the most recent figures, there are 14,973 autistic pupils in schools run by local authorities in Scotland. The vast majority of these pupils are in mainstream schools and so every teacher will have autistic pupils in their classes throughout their careers. It is because of this prevalence that we believe that autism should be included as a specific topic in Initial Teacher Education in Scotland...In a survey we carried out in 2015 on what our charity’s priorities should be, 70% of Scottish respondents identified teacher training as the most important change that needed to happen in our education system.”

25. NASS also raised the issue of Additional Support Needs Tribunals, adding—

“We often hear from the parents of autistic children and young people that they often have to go down this route of dispute resolution because a child’s needs are not understood by education professionals and therefore, not being met appropriately.”

26. It continued by pointing to a joint report in partnership with Children in Scotland and Scottish Autism published in September 2018, entitled Not Included, Not Engaged, Not Involved which contained a number of ‘calls to action’ including that the Scottish Government—

“…implements a model of continuous professional development in autism understanding for education staff, similar to the Autism Education Trust which is funded in England by the Department for Education and has trained over 150,000 staff.”

27. The Scottish Secondary Teachers’ Association said that it “strongly supports the second point (relevant to educational provision)” of the petition—

“Currently, there is no statutory requirement for teachers or PSAs to have any specialist training in this ‘additional support need’ area. Many teachers feel underqualified and trained to support the children and

1 https://www.gov.scot/publications/microsegmentation-autism-spectrum/ 10

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young people in their care. They would welcome any training made available to them both in mainstream and in specialist settings…SSTA members through motions at national Council and Congress have given the SSTA Executive the mandate to demand, of Scottish Government thorough legislation and local authorities through resourcing, adequate levels of staffing and appropriate training for teachers and auxiliary staff in order to best support children and young people with additional support needs including those with autism.”

Local authority and Health and Social Care Partnership responses

28. On balance, local authorities do not seem to be convinced by the proposal in the petition, additionally citing issues with selection, recruitment and retention of staff and significant funding implications.

“An autism training needs analysis survey has been developed and circulated widely across Angus to public sector, third sector and voluntary groups as well as to community groups and facilities. Over 200 responses have been received. This survey will inform future training opportunities.” (Angus Council and Angus Health and Social Care Partnership)

“As all children and young people, whether they have a specific diagnosis or not, will have a unique profile of strengths and needs, it is important to ensure that staff development is aimed at addressing need and barriers to learning rather than focusing predominantly on an overarching label.” (Argyll and Bute Council and Argyll and Bute Health and Social Care Partnership)

“Assessed needs for classroom support do not necessarily require that a dedicated Support for Learning Worker (termed an ASL assistant in the petition) would have to be employed to support meeting needs. If this were to be the case, there would potentially be significant funding implications. Holistically it makes better sense to ensure that all staff within an establishment have the relevant skills and training to allow them to support the needs of young people on the spectrum rather than having an overreliance on one SfL worker or group of staff which can also create an overdependence on an adult.” (Glasgow City Council)

“Our Autism strategy provides Autism training for mainstream practitioners; for our primary and secondary Autism educational support resource bases and for our Additional Support Needs school staff. With children of pre-school age, our home visiting team and early years language resource liaise with families and Early Years Centres to provide support and advice to meeting their autism needs. All training is designed; annually updated and delivered by Educational Psychologists in partnership with parents of children with Autism, individuals with Autism, and with specialist establishment staff.” (North Ayrshire Council)

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“It is the role of teachers, to lead on this work and support from a support for learning assistant may be identified as appropriate to enable some aspects of learning and development. The question of support provision, often seems to be simplified to the provision of hours of support assistant time, rather than reflecting the work of a team around a child in line with the ASL Act and Staged Intervention processes, used to plan to meet the needs of all children who have identified additional support needs. Research shows that support assistant time can support engagement positively but can also decrease attainment and the focus is on helping children to develop strategies and skills for independence and to support the leading of a ‘normal’ life.” (Stirling Council)

“Extending the support to children and young adults through an improved and consistent service across Scotland, via the named targets and outcomes within the petition, is a positive proposal but there are potential financial implications at local level that would need to be considered.” (East Ayrshire Council)

“Currently where children and young people have an assessed need for an additional needs assistant to support them with their learning this is provided and appropriate training is given. If this were to change to a requirement and mandatory registration there may be issues with selection and recruitment of staff as well as additional resourcing to provide appropriate qualifications.” (Scottish Borders Council)

“We do not agree that this would not always be appropriate in terms of meeting assessed needs of the child or young person and in some cases may have a negative impact on development.” (East Renfrewshire Health and Social Care Partnership)

“We feel this is an appropriate aspiration for all children and young people with an additional support need not just those with an ASC, the difficulty would be defining the support to be provided as all needs are highly individual. It will be important to clarify that the qualifying criteria – autistic diagnosis and that the extension of service provision is adequately funded.” (Aberdeen City Council)

“South Lanarkshire Council has invested heavily in creating a training model for both teachers and school support assistants that provides them with the skills and experiences to best support children with autism in mainstream schools and ASN provisions…It would be our intention to continue to develop such training to meet the needs of a changing pupil population. This will always be part of how we respond to our duty to meet the needs of children in our establishments, however, it will not be based on creating a mandatory structure of training as such a system could have unintended consequences in terms of recruitment and retention of staff.” (South Lanarkshire Health and Social Care Partnership)

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The Scottish Government

29. In response to the proposal that children with autism in mainstream schools will have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of a mandatory registration process for ASL professionals, the Scottish Government commented—

“We are clear that for children to get the right support in school it is important that their individual needs are known and understood. To support this, needs assessment for pupils is a part of their day-to-day learning and teaching in schools. This starts in ELC and continues throughout a child or young person’s time in school. This should not be a one-off activity, but a process of gathering information to get a picture of a child’s progress. There is currently no recognised autism qualification for teachers to complete. All teachers provide support to pupils not just ‘support for learning’ teachers. Assessment is carried out by teaching and support for learning staff in school.”

30. The response also highlights that student teachers are expected to have an understanding of additional support needs—

“The evaluation framework confirms that it is for the General Teaching Council for Scotland to set the policy on the content, nature and duration of programmes leading to teaching qualifications (TQs) for the primary and secondary sectors and to ensure these requirements are met through the accreditation of all programmes of Initial Teacher Education (ITE) in Scotland. Very specifically, this framework confirms that the General Teaching Council for Scotland requires Initial Teacher Education providers to provide ‘an outline of how student teachers are supported to develop an understanding of current national policy and to make a positive contribution in areas such as Inclusion (including Additional Support Needs); and that ITE providers are required to ‘outline how programmes are designed to develop and promote equality, diversity and address any potential discrimination to embrace diversity, challenge discrimination and promote the equal opportunity requirements laid down by statute.’”

And in relation to the current resources available to education staff, the Scottish Government response said—

“In the refreshed autism strategy priorities the Scottish Government has committed to reviewing the current autism resource in schools - the Autism Toolkit - to better meet the needs of teachers and education staff working with autistic pupils. We have also committed to exploring with Strathclyde University a pilot in their Initial Teacher Education provision.”

Statutory right to specialist support from their local authority up to age 25

31. The National Autistic Society Scotland stated—

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“Whilst a young person is in school education, their Coordinated Support Plan (CSP) should continue if needed (could be up to age 19). There are no further duties relating to education once a young person has left school. In England, Education and Health Care Plans (EHCPs) are statutory plans for children and young people requiring additional support from both education and social work services. They last until the age of 25 while they remain in education and further education…We know that transition can cause anxiety for autistic people, and therefore believe that anything that improves this process should be welcomed. We therefore support a move to replicate this in Scotland.”

32. The EIS said—

“…it is important for young adults to be supported at transition stages in their lives, for example, as they move to further or higher education.”

33. Autism Network Scotland identified lack of resources as a possible barrier to this aim—

“Additional resource would provide the opportunity for higher levels of trained ASL staff within the classroom, both as teachers and support staff. It would also make it possible to provide specialist support until the age of 25.”

Local authority and Health and Social Care Partnership responses

34. Responses did not, on balance, favour the proposal and although a few suggested cautious support in theory, there were, however, concerns raised about whether the proposal would be welcomed or seen as intrusive, about the individuality of each person’s requirements and, again, about the funding and resources necessary for the proposal balances against the requirement for additional legislation (with some respondents suggesting that existing legislation already covers the proposal).

“Not all young people with autism wish to access formal support and some do not have an assessed social care need for support – introducing this as a statutory right would be at odds with our current legislative duties and eligibility criteria, should there not be an assessed need for support. This would also place further pressure on existing resources.” (Angus Council and Angus Health and Social Care Partnership)

“…it is recognised that the longer term commitment to young adults with Autism up to age of 25 is likely to require further funding (out with personal care needs) nationally in order to fully reflect the higher unit costs of services in what is a rural and island authority with a dispersed population that prevents economies of scale.” (Argyll and Bute Council and Argyll and Bute Health and Social Care Partnership)

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“Furthermore, we feel that setting an age restriction would create issues with access for autistic people over the age of 25, who may continue to require support beyond this age limit.” (Aberdeenshire Health and Social Care Partnership)

“We would suggest that this should this read ‘will have a statutory right to be assessed for specialist support’. Having autism does not necessarily mean that every young person needs specialist support.” (Glasgow City Council)

“It’s not clear why this statutory right would be made available to people with autism, rather that all people with ASN or disabilities…All people can already access services required when they meet the criteria for that service and assessment of need is already mandated in legislation. We were not clear how a statutory right would add to this.” (Stirling Council)

“Adults with Autism will have a continuing right to appropriate and proportionate support from the local authority in adult life.” (Dundee City Council)

“We would welcome this support in principle, however it has funding and service implications.” (East Ayrshire Council)

“Bringing this requirement under a statutory right will put significant pressure on current resources and will undoubtedly require a level of additionality.” (Scottish Borders Council)

“We agree with this for young adults with autism under the Children’s and Young Person’s Act 2104 where a corporate parenting duty exists. For those supported under S23 of the Children (S) Act 1995 a managed transition should be carried out between the ages of 16 and 18.” (East Renfrewshire Health and Social Care Partnership)

“…current legislation indicates that Corporate Parenting duties apply to young care experienced/looked after people up until they reach the age of 26…the implication that being diagnosed with autism spectrum condition would automatically mean a person would be ‘corporately parented’ up until the age of 25 is something which many autistic people would find unnecessary and possibly intrusive. However, where autistic people experience co-morbid learning disabilities or mental

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health problems, extended rights could prove to be supportive.” (South Lanarkshire Health and Social Care Partnership)

Scottish Government

35. In response to the proposal that young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25, the Scottish Government said—

“We have committed to ensure that that each young person be offered an appropriate place in post 16 learning to equip them with skills and knowledge to progress into adulthood. Local authorities have duties to plan for a young person with additional support needs leaving school, and must consider the needs of each young person with additional support needs when helping them plan for leaving school. They should do this by working in partnership with agencies to identify opportunities for each young person leaving school – including those with additional support needs. In addition to this, if a child or young person wishes to go on to further or higher education then the Local Authority may provide adequate and efficient education whether this be in schools or other places, such as colleges.”

An Autism Act in place within the next five years to enshrine specific rights and services for autistic people in the legal system

36. The Autism Network Scotland commented “Scotland has already been down the road of considering an Autism Act and decided against in favour of the Strategy.”

37. The National Autistic Society Scotland said—

“In November 2017, we responded to the Scottish Government’s consultation on what its priorities should be. In this response, we stated our belief that the Strategy has not yet had the impact that was intended or expected. We also believe that that too few of the initiatives that have been brought about by the Strategy have had real lasting change.”

38. NASS adds that it is undertaking its own analysis of the Scottish Strategy for Autism—

“We have previously campaigned for an Autism Act in Scotland, and recognise the positive change legislation has brought about in England, and will come to a view as to whether or not legislation is necessary once the all the available evidence is gathered.”

39. The view of the EIS is that—

“The existing Education (Additional Support for Learning) (Scotland) Act 2004 (as amended), GIRFEC, the Equality Act 2010 and the

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UNCRC all provide a strong foundation for meeting the needs of people with autism during their education. Regrettably, however, sustained under-resourcing of the education system, and specifically of additional support for learning provision, has meant the promise of policy not being fully delivered.”

Local authority and Health and Social Care Partnership responses

40. Although a few respondents offered support for specific legislation for autistic people, the majority of respondents did not support the proposal. Along with again citing the need for additional resources and funding to support new provisions, respondents also argued that creating condition specific legislation would risk groups with other conditions advocating for their own legislation and potentially create a complex and confusing array of legislation and that a focus on specific diagnosed conditions always leaves certain groups behind in provision made.

“Whilst we believe that the policy intent can be achieved through existing legislation, we feel that this is for Scottish Government to determine and not individual local authorities and Health and Social Care Partnerships. However, were this to be introduced we would urge the Scottish Government to ensure that this legislation is aligned to the current legislative duties of local authorities and HSC Partnerships and that funding is made available to implement any new legislative duties.” (Angus Council and Angus Health and Social Care Partnership)

“It is envisaged once the Autism Act is in place that this will be supported by further frameworks and funding streams on which to focus attention and support individuals diagnosed with Autism in the widest sense. However, once again any changes to legislation and emphasis on new statutory duties will require to take cognisance of raised expectations and possible legal challenge(s) balanced against actuals and what is deliverable within the context of geography, dispersed populations, resources and available staffing, skills and appropriate expertise. Also, as mentioned already it is recognised that Autism is only one of a large range of conditions and the concept of introducing Autism specific legislation may be perceived at odds with current considerations in respect to wider discussions about the possible combining of legislation in relation to Adult Support and Protection, Mental Health, Learning Disability and the Adults with Incapacity. If so, it is reasonable to question whether further legislation is required to underpin specific conditions.” (Argyll and Bute Council and Argyll and Bute Health and Social Care Partnership)

“We would not support an Autism Act. There is already relevant legislation that is suitable for protecting the rights of any adults that have a condition that may make them more vulnerable than others and ensuring that they receive the assessment and services that they require. Creating condition specific legislation would risk groups with other conditions advocating for their own legislation and potentially

PPC/S5/18/19/7 create a complex and confusing array of legislation. The rights of autistic individuals are important, however to create an Autism Act implies that this condition has statutory rights that individuals with other specific conditions do not have, which seems inherently unjust.” (Aberdeenshire Health and Social Care Partnership)

“We would support this aspiration.” (Glasgow City Council)

“There is a significant bank of legislation and guidance in place which covers the concerns leading to this petition – The ASL Act, the CYP Act, Children’s Scotland Act, Social work Scotland Act and Refreshed Guidance ‘Included, Engaged and Involved Part 2: a positive approach to preventing and managing school exclusions, all cover these concerns for all with additional support needs, including autism…We don’t believe that additional and specific legislation would be a step forward in ensuring that there is consistency of appropriate support available across all local authorities.” (Stirling Council)

“The Autism Strategy for Scotland has provided a strong basis for addressing the rights of autistic people over the last 10 years. The Additional Support for Learning (Scotland) Act, 2004, revised 2009, 2018 makes provision for all children and young people with ASN and is inclusive of those with Autism. It is questionable whether an act which is specific to Autism would add any value to current legislation; and could arguably disadvantage and be discriminatory against children and young people with other assessed needs and alternative diagnoses. Implementation of the ASL Act addresses all needs in an equitable way, regardless of diagnosis or label.” (Dundee City Council)

“Once more the idea of consistency across Scotland would be welcomed, however service re-delivery and design would need to reflect the expectations of an Autism Act and cognisance taken of the training and investment that would need to be undertaken to ensure that the terms of new legislation can be fairly and legitimately delivered.” (East Ayrshire Council)

“Additional resources will be required if the Act places duties on Local Authorities to deliver. Children and young people with autism have a wide range of needs and whilst some require specialist services as a constant others only require intermittent access. An Act would have to give careful consideration of the spectrum of need and support required. If specific rights and services were resource driven then this would require additional funding in schools to allow local authorities to offer enhanced support to children affected by autism.” (Scottish Borders Council)

“We do not agree that there is a need for a specific Autism Act. A focus on specific diagnosed conditions always leaves certain groups behind in provision made. There is a need for specific consideration of the

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needs and rights of all individuals with communication and support needs.” (East Renfrewshire Health and Social Care Partnership)

“We feel that it would be appropriate that any child or young person with an additional support need gets the protection and support they need through the legal system. The timescale noted would appears appropriate and would allow time for services to plan for the proposed changes.” (Aberdeen City Council)

“The fact that specific autism legislation has been enacted in England since 2009 and Northern Ireland since 2011 would support the view that the UK autistic population does require specific services and supports. The remaining two years left of the Scottish Strategy for Autism would give ample time to consult on the question of legislation thereafter.” (South Lanarkshire Health and Social Care Partnership)

The Scottish Government

41. The Scottish Government’s response recalls a previous call for autism-specific legislation. In 2010, Hugh O'Donnell MSP introduced a Member's Bill to the Scottish Parliament – the Autism (Scotland) Bill. Then – as now – there was no legislation that related specifically to autistic people. The Bill's objective was to place a statutory duty on the Scottish Government to 'prepare and publish a strategy to meet the needs of children and adults with autism; consult with appropriate organisations and people; and issue statutory guidance to local authorities and health boards on their services for children and adults with autism'.

42. After consideration at Stage 1, the then Education, Lifelong Learning and Culture Committee concluded that the Autism (Scotland) Bill, as it was introduced, would not create robust enough obligations for local authorities and health boards to deliver meaningful change to services for autistic people. Resources, the Committee said, would be better used if they focussed on implementation of existing legislation and duties.

43. The Scottish Government commented, in its response—

“In the autism strategy engagement last year the appetite for an Autism Act was not high on the issues autistic people and their families felt were better needed to improve their lives. The engagement analysis bears this out. Given that there is there is currently little appetite, we still think it inappropriate to introduce new legislation to countermeasure the implementation of existing legislation.”

Other issues raised in submissions - strategies and training already in place

44. The EIS offered further information to the Committee in its submission citing teacher shortages and budget constraints as hampering efforts of its members in supporting pupils with ASN. It said—

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“We note that the Committee is interested to understand what strategies and training are currently in place to enable our members to support young people with autism. We would say these are, in summary, professional learning offered by the EIS; information disseminated to/by our ASN Network; and EIS support for the Professional Update process, including member guidance, which can be a vehicle for enhanced learning on autism. Our members report a dearth of support and professional learning opportunities from their employers, and difficulties accessing the courses that do exist, due to the ongoing teacher shortage which makes cover difficult to secure. Cuts to CPD budgets have reduced the professional learning offer from employers and members’ access to courses supplied by external providers, for which there is a fee.”

“…Scottish Government data confirms that the number of pupils with ASN has vastly increased…The increase over those five years was 73%. It is hard to see how it is possible to ‘Get it Right for Every Child’, including children with autism, when so many now have identified needs, and schools are operating within austerity budgets…”

45. And in relation to class sizes “...they continue to edge upwards.”

46. The EIS also pointed out that, in its view—

“Some children with autism will have very different achievements than those captured by CfE levels and SQA exam data, and that is hugely important and valid. What matters most is children meeting their potential, and the four capacities of the Curriculum for Excellence.”

47. The Scottish Government concludes its response to the Committee by stating—

“…we accept that much more needs to be done to improve the lives of autistic people in Scotland. We will continue to work with relevant statutory bodies and third sector partners to ensure that the inequalities autistic people face daily are addressed across all sectors including education, health and social care.”

Conclusion

48. The Committee is invited to consider what action it wishes to take. Options include—

• To seek a response from the petitioner on the issues raised in the submissions

• To write to the Scottish Government seeking further information in relation to—

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o Providing more detail about its statement that there is “a recognition that varying waiting times across Scotland are too long and should be improved.” o The suggestion that the Scottish Government should commit to recording, publishing and monitoring autism diagnosis waiting times

o Whether there enough health professionals involved in the diagnostic process, particularly around the claim by the EIS that “the only university in Scotland due to offer educational psychology training next year has said it will not be running the course, meaning that there may be no new entrants to the profession in 2021.”

o Concerns around teacher numbers and workloads which may impact on provision or quality of service to pupils with additional needs

o Whether enough training is provided to student teachers around additional support needs

• To take any other action the Committee considers appropriate.

Clerk to the Committee

Annexe A The following submissions are circulated in connection with consideration of the petition at this meeting—

• PE1704/A: Angus Council and Angus Health and Social Care Partnership submission of 24 October 2018 (122KB pdf) • PE1704/B: Argyll and Bute Council and Argyll and Bute Health and Social Care Partnership submission of 26 October 2018 (258KB pdf) • PE1704/C: Aberdeenshire Health and Social Care Partnership submission of 29 October 2018 (126KB pdf) • PE1704/D: Glasgow City Council submission of 29 October 2018 (213KB pdf) • PE1704/E: Scottish Government submission of 30 October 2018 (306KB pdf) • PE1704/F: North Ayrshire Council submission 30 October 2018 (297KB pdf) • PE1704/G: Stirling Council submission of 30 October 2018 (275KB pdf) • PE1704/H: Autism Network Scotland submission of 30 October 2018 (13KB pdf) • PE1704/I: Dundee City Council submission of 31 October 2018 (114KB pdf) • PE1704/J: East Ayrshire Council submission of 31 October 2018 (141KB pdf) • PE1704/K: Scottish Secondary Teachers’ Association submission of 31 October 2018 (14KB pdf) • PE1704/L: South Lanarkshire Health and Social Care Partnership submission of 31 October 2018 (278KB pdf) • PE1704/M: National Autistic Society submission of 31 October 2018 (328KB pdf)

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• PE1704/N: Scottish Borders Council submission of 1 November 2018 (161KB pdf) • PE1704/O: EIS submission of 2 November 2018 (404KB pdf) • PE1704/P: East Renfrewshire Health and Social Care Partnership submission of 2 November 2018 (263KB pdf) • PE1704/Q: Aberdeen City Council submission of 12 November 2018 (244KB pdf)

All written submissions received on the petition can be viewed on the petition webpage.

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PE1704: ANNEXE B EXTRACTS FROM SUBMISSIONS

Council Diagnosis and Statutory Supporting Up to age 25 Autism Act in the Waiting Times services autistic children next 5 years assessments and young people in education

Angus Council “Currently, an “It would not be An autism training Not all young people Whilst we believe that and Angus individual referred feasible, nor needs analysis with autism wish to the policy intent can Health and for ASD diagnosis proportionate, for all survey has been access formal support be achieved through Social Care in Angus will wait individuals developed and and some do not have existing legislation, we Partnership between 6 and 14 presenting with low circulated widely an assessed social feel that this is for months due to the level needs to be across Angus to care need for support Scottish Government high referral rate assessed by a public sector, third – introducing this as a to determine and not and resource qualified social sector and statutory right would individual local capacity. The worker as there are voluntary groups as be at odds with our authorities and Health assessment target insufficient well as to current legislative and Social Care of within a resources to do this community groups duties and eligibility Partnerships. calendar year and it would have and facilities. Over criteria, should there However, were this to would only be an impact for people 200 responses not be an assessed be introduced we realistic if there of greater have been need for support. This would urge the were enough need/risk/complexity received. This would also place Scottish Government health who require the survey will inform further pressure to ensure that this professionals to level of skill held by future training legislation is aligned meet this a qualified social opportunities. on existing resources. to the current demand.” worker. The principle of legislative duties of response being local authorities and proportionate to HSC Partnerships and assessed need that funding is made

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should, in our view, be available to implement retained any new legislative duties.

Argyll and …Resources are Under the ASL Act “As all children and “…it is recognised that It is envisaged once Bute Council allocated using a there is a young people, the longer term the Autism Act is in and Argyll and ‘Prioritisation of requirement to whether they have commitment to young place that this will be Bute Health Need Framework’. ensure that the a specific diagnosis adults with Autism up supported by further and Social In common with provision of support or not, will have a to age of 25 is likely to frameworks and Care many other is directed to the unique profile of require further funding funding streams on Partnership Partnership’s needs of each child strengths and (out with personal which to focus across Scotland, whether or not they needs, it is care needs) nationally attention and support Argyll and Bute have a specific important to ensure in order to fully reflect individuals diagnosed HSCP have put in diagnosis. This that staff the higher unit costs with Autism in the place a would include development is of services in what is widest sense. prioritisation Looked After aimed at a rural and island However, once again framework to Children, those with addressing need authority with a any changes to guide the complex learning and barriers to dispersed population legislation and allocation of needs or a learning rather than that prevents emphasis on new resources to those disability, those with focusing economies of scale.” statutory duties will in the greatest an autism diagnosis predominantly on require to take need. The need and those who may an overarching cognisance of raised for such a have an autism label.” expectations and framework is a spectrum disorder possible legal direct response to but do not have a challenge(s) balanced the increasing gap diagnosis. against actuals and between assessed what is deliverable need and available within the context of resources.” geography, dispersed populations, “Argyll and Bute resources and HSCP is available staffing, committed to

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delivering a skills and appropriate sustainable expertise. service. However, it is acknowledged Also, as mentioned that recruitment already it is issues do recognised that contribute to Autism is only one of diagnostics and a large range of waiting lists.” conditions and the concept of introducing Autism specific legislation may be perceived at odds with current considerations in respect to wider discussions about the possible combining of legislation in relation to Adult Support and Protection, Mental Health, Learning Disability and the Adults with Incapacity. If so, it is reasonable to question whether further legislation is required to underpin specific conditions

Aberdeenshire . If on screening, it The stipulation that Health and Social “…we feel that any We would not support Health and is established that this is a social work Care Partnerships support provision an Autism Act. There an individual assessment seems do not have should be based on is already relevant would benefit from restrictive and responsibility for risk, need and the legislation that is

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Social Care support other than contrary to the education and outcomes of an suitable for protecting Partnership that provided by interests of an children services individual, particularly the rights of any statutory services, autistic adult. During as the abilities and adults that have a it would seem the diagnostic support needs of condition that may counterintuitive to process the team autistic individuals make them more proceed with a involved will gain vary to great extent. vulnerable than others social work good insight into an There is a need to and ensuring that they assessment. individual’s develop a wide variety receive the Individuals, whose strengths, and of services that assessment and initial screening areas where the acknowledges the services that they indicate that they person may require different level of require. Creating require a full support. There abilities of autistic condition specific assessment, should be a holistic, adults.” legislation would risk would already be multi-disciplinary groups with other offered this and in approach to Furthermore, we feel conditions advocating a much tighter assessment and the that setting an age for their own timescale than team requires legislation and restriction would twelve months. flexibility about potentially create a create issues with There would also which professional complex and access for autistic be an additional should lead on this. confusing array of people over the age of demand on The right to a social legislation. The rights 25, who may continue staffing resources, work assessment is of autistic individuals to require support which would be already a statutory are important, beyond this age limit. detrimental to requirement, however to create an people who are however there is an Autism Act implies more at risk, in element of that this condition has terms of screening in this statutory rights that increasing process to ensure individuals with other timescales for their that Social Work specific conditions do assessment Services have an not have, which process. approach that promotes the

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independence of an seems inherently individual and unjust. makes best use of resources. In our view, the focus should be on providing diagnostic and post diagnostic support to adults, based on level of risk and need, rather than condition specific.

Glasgow City It has already Whilst aspirational, Assessed needs We would suggest We would support this Council been determined we would question for classroom that this should this aspiration. that referrals for how realistic it support do not read ‘will have a autism diagnostic would be to expect necessarily require statutory right to be procedures take, statutory services that a dedicated assessed for on an average 10 assessment to be Support for specialist support’. hours to assess, completed within 12 Learning Worker Having autism does frequently with months of initial (termed an ASL not necessarily mean very considerable referral. assistant in the that every young individual petition) would person needs variation. This is have to be specialist support obviously an employed to extensive time support meeting commitment needs. If this were required by to be the case, there would potentially be

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professionally- significant funding qualified staff. implications. No one test is Holistically it makes appropriate for all better sense to young people and ensure that all staff each individual within an referral may be establishment have assessed using a the relevant skills different and training to combination of allow them to tools. support the needs of young people on the spectrum rather than having an overreliance on one SfL worker or group of staff which can also create an overdependence on an adult.

North Ayrshire Children in North Our Autism Council Ayrshire with Autism strategy provides do have their needs Autism training for assessed through mainstream our staged practitioners; for intervention and our primary and Child's Plan secondary Autism process. This educational support process resource bases acknowledges their and for our autism and Additional Support

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identifies the effect Needs school staff. it has on their lives. With children of A number of specific pre-school age, our targets based on home visiting team wellbeing are set in and early years response to the language resource child's individual liaise with families needs and support and Early Years is allocated from a Centres to provide core budget to support and advice support them. to meeting their autism needs. All training is designed; annually updated and delivered by Educational Psychologists in partnership with parents of children with Autism, individuals with Autism, and with specialist establishment staff.

Stirling In individual cases A services It is the role of It’s not clear why this There is a significant Council there can be assessment from a teachers, to lead statutory right would bank of legislation and delays and children and on this work and be made available to guidance in place frustration about families social support from a people with autism, which covers the the process from worker is not always support for learning rather that all people concerns leading to parents and we wanted by assistant may be this petition – The

PPC/S5/18/19/7 feel that two other individuals or identified as with ASN or ASL Act, the CYP Act, things may help families following appropriate to disabilities. Children’s Scotland with this diagnosis. Clear enable some Act, Social work signposting to aspects of learning We are aware of Scotland Act and 1) Clearer, timely services and and development. parental concern Refreshed Guidance protocols and partnership The question of about challenges ‘Included, Engaged communication approaches to support provision, associated with the and Involved Part 2: a about the support, in line with often seems to be different models of positive approach to processes existing legislation – simplified to the support delivery, preventing and followed, so that ASL Act and CYP provision of hours which reflect need managing school individuals and Act make this of support assistant and individual exclusions, all cover families know what support available to time, rather than presentation at the these concerns for all to expect as they individuals as and reflecting the work children’s stage, but with additional support go through the when it is required. of a team around a may meet a different needs, including experience 2) child in line with the threshold at the point autism. People with Clarity about the There is an existing ASL Act and of transition to adult an autism diagnosis complex nature of statutory Staged Intervention services. All people are a very broad diagnosis in some responsibility to processes, used to can already access group, some who will cases, where assess subject to plan to meet the services required need significant and there are multiple the Social needs of all when they meet the ongoing support and complex factors to Work(Scotland) Act children who have criteria for that service others who will not, or be considered. 1968, Section 12. identified additional and assessment of who will be able to support needs. need is already access support as Setting a year as a mandated in required. We don’t limit is not the Research shows legislation. We were believe that additional change that we that support not clear how a and specific feel would be most assistant time can statutory right would legislation would be a appropriate to support add to this. step forward in resolve these engagement ensuring that there is concerns. positively but can consistency of also decrease appropriate support attainment and the

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focus is on helping available across all children to develop local authorities. strategies and skills for independence and to support the leading of a ‘normal’ life.

Dundee City Additional support Dundee CC has a Adults with Autism will The Autism Strategy Council for children and long-standing have a continuing for Scotland has young people with partnership right to appropriate provided a strong Autism in agreement with and proportionate basis for addressing mainstream D&A College which support from the local the rights of autistic schools is requires all ‘support authority in adult life people over the last provided through assistant’ students 10 years. The adaptations to the on the PDA Additional Support for learning Programme for ASN Learning (Scotland) environment, to undertake the Act, 2004, revised which may include Autism module 2009, 2018 makes support assistants. within their training. provision for all However, a sole All current children and young focus on this form employees have people with ASN and of support is been audited in is inclusive of those limiting, and does relation to their skills with Autism. It is not take into and qualifications questionable whether account the wider profile and the an act which is evidence base majority have specific to Autism relating to the undertaken the would add any value impact of Autism module to current legislation; learning/teaching within their training. and could arguably assistants (REF disadvantage and be here). Rather, the discriminatory

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mandatory against children and requirement young people with should be for all other assessed needs mainstream and alternative schools to provide diagnoses. an Autism-friendly Implementation of the learning ASL Act addresses all environment which needs in an equitable addresses the way, regardless of curriculum diagnosis or label. (including sensory curriculum) and pedagogy for children and young people with ASN.

East Ayrshire We would We would support Extending the We would welcome Once more the idea of Council welcome a the proposal for support to children this support in consistency across consistent multi- training and young adults principle, however it Scotland would be agency approach opportunities to through an has funding and welcomed, however across Scotland focus on autism, improved and service implications. service re-delivery as this would however if a consistent service and design would assist service mandatory across Scotland, need to reflect the delivery and qualification is via the named expectations of an planning with our introduced, there targets and Autism Act and colleagues within would need to be outcomes within cognisance taken of health and social clear guidelines and the petition, is a the training and care access to positive proposal investment that would appropriate training but there are need to be to enable the potential financial undertaken to ensure present workforce to implications at local that the terms of new

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develop at a level that would legislation can be suitable pace. There need to be fairly and legitimately are also funding considered. delivered. implications. The Ayrshire and Arran Autism Strategy 2015-2025 highlights multiagency training as a key opportunity to share good practice across departments, agencies and localities.

Scottish This is an Currently where Bringing this Additional resources Borders aspirational target children and young requirement under a will be required if the Council but would certainly people have an statutory right will put Act places duties on support children assessed need for significant pressure Local Authorities to and families who an additional needs on current resources deliver. Children and rely on a diagnosis assistant to support and will undoubtedly young people with to access funding them with their require a level of autism have a wide and other learning this is additionality. range of needs and resources. provided and whilst some require appropriate training specialist services as is given. If this a constant others only were to change to require intermittent a requirement and access. An Act would mandatory have to give careful registration there consideration of the may be issues with selection and

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recruitment of staff spectrum of need and as well as support required. additional resourcing to If specific rights and provide appropriate services were qualifications. resource driven then this would require additional funding in schools to allow local authorities to offer enhanced support to children affected by autism.

East We agree that We disagree that all We do not agree We agree with this for We do not agree that Renfrewshire diagnostic individuals being that this would not young adults with there is a need for a Health and assessments assessed for autism always be autism under the specific Autism Act. A Social Care should be should be assessed appropriate in Children’s and Young focus on specific Partnership completed within a by a qualified social terms of meeting Person’s Act 2104 diagnosed conditions calendar year. worker. assessed needs of where a corporate always leaves certain the child or young parenting duty exists. groups behind in Children may person and in For those supported provision made. There benefit from a some cases may under S23 of the is a need for specific wellbeing have a negative Children (S) Act 1995 consideration of the assessment impact on a managed transition needs and rights of all consistent with the development should be carried out individuals with national practice between the ages of communication and model within a 16 and 18. support needs. child’s plan with resources put in place to support wellbeing and curriculum access,

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however, there would be challenges meeting and maintaining this target. These children do not always necessarily require social work intervention. Many autistic adults are able to manage their lives without the need for statutory services.

Aberdeen City We feel this is an Not every family We feel that there We feel this is an We feel that it would Council appropriate would necessarily is already appropriate aspiration be appropriate that priority. want or require the recognised for all children and any child or young involvement of legislation in place young people with an person with an social work to ensure that additional support additional support services. children’s needs need not just those need gets the Additionally, it would are being assessed with an ASC, the protection and support not be essential in with regards to difficulty would be they need through the all cases for a support within the defining the support to legal system. qualified social classroom. There be provided as all worker to undertake are many very needs are highly The timescale noted an assessment - a experienced and individual. would appears care able support staff appropriate and would coordinator/family working in It will be important to allow time for services support officer or classrooms across clarify that the to plan for the equivalent post may Scotland who qualifying criteria – proposed changes. already have the autistic diagnosis and

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provide a more knowledge, skills that the extension of workable solution. and experience service provision is required to support adequately funded. children with an ASC. Making it mandatory to have a recognised qualification and registration process could potentially restrict the number of individuals being prepared and willing to embark on a career supporting children with additional support needs.

South Current service With regard to a South Lanarkshire “…current legislation The fact that specific Lanarkshire standard ‘statutory services Council has indicates that autism legislation has Health and timescales within assessment’ from a invested heavily in Corporate Parenting been enacted in Social Care NHS Lanarkshire qualified Social creating a training duties apply to young England since 2009 Partnership (NHSL) are clear Worker, this implies model for both care and Northern Ireland in that every that ‘as an integral teachers and experienced/looked since 2011 would person accepted part of this process’ school support after people up until support the view that as requiring an parent carers of assistants that they reach the age of the UK autistic autism autistic children provides them with 26.” population does assessment will be would waive their the skills and require specific seen within 9 -12 right to request experiences to best Given the fact that the services and weeks. The most assistance under support children Micro Segmentation supports. The recent figures Sections 22, 23 and with autism in Report published in remaining two years March 2018 by the

PPC/S5/18/19/7 indicate that in 24 of The Children mainstream Scottish Government left of the Scottish 2017-2018 the (Scotland) Act 1995, schools and ASN concluded that over Strategy for Autism following autism and have such an provisions. These two thirds of would give ample time diagnoses were assessment training Scotland’s autistic to consult on the made: imposed upon them opportunities have population did not question of legislation after an autism been recognised by have a co-morbid thereafter. 81.7% at 9wks diagnosis was organisations in the learning disability, the 94.5% at 12wk made. Current field as being very implication that being South Lanarkshire (Speech and legislation imposes effective in skilling diagnosed with autism has also invested in Language a statutory duty up staff. It would spectrum condition the ARCH (Autism Therapy). upon the local be our intention to would automatically Resources authority to assess continue to develop mean a person would Coordination Hub) a There are the needs of all such training to be ‘corporately bespoke autism currently no children in meet the needs of parented’ up until the community hub, which waiting times for need/affected by a a changing pupil age of 25 is will continue to be the children in relation disability under population. This something which focus of service to autism Sections 22 and 23 will always be part many autistic people development and diagnosis, who are of The Children of how we respond would find strategic direction. assessed as part Scotland Act 1995 if to our duty to meet unnecessary and of the universal requested to do so. the needs of possibly intrusive. pathway. children in our establishments, However, where however, it will not autistic people be based on experience co-morbid creating a learning disabilities or mandatory mental health structure of training problems, extended as such a system rights could prove to could have be supportive. unintended consequences in terms of

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PE1704: Improve targets and outcomes for autistic people in Scotland Petitioner Duncan MacGillivray

Date 13 September 2018 Lodged

Petition Calling on the Scottish Parliament to urge the Scottish Government Summary to ensure that an agenda of real and meaningful change for autistic people is pursued by introducing the following targets and outcomes by 2021:

• That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

• That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

Previous I have raised these issues with my MSPs, including Michael Action Russell, Donald Cameron and John Finnie and with MSP’s with previous ministerial responsibilities, Jamie Hepburn and Shona Robison.

I have raised my concerns with civil servants/advisors to government.

I also had a petition last year hosted by change.org calling for similar actions. This petition amassed 2,014 signatures and approximately 200 comments of support.

I originally intended for this petition to be considered by the Committee much earlier in 2018, but unfortunately it was not processed in time by the Petitions Department.

Background Many people living with autism in Scotland have been disappointed Information and let down by the Scottish Government’s 10-year Autism Strategy launched in 2011. We have had lots of talk, conferences and words on paper but no action or material changes.

So many of us had high hopes for improvements for our loved ones but these improvements have never materialised. For the Scottish Government to claim they have accomplished much for autistic people and their families is simply untrue.

Scottish Autism Strategy Outcomes and Priorities 2018-2021

The Scottish Autism Strategy Outcomes and Priorities 2018 -2021 document (https://www.gov.scot/Resource/0053/00533392.pdf) published in March 2018, sets out priorities for action for the final phase of the 10 year Autism Strategy through to 2021. To inform this document, the Scottish Government undertook a series of engagement events including a consultation.

However, I believe that this document has failed once again to commit to real, meaningful and measurable improvement for autistic people in Scotland and that they have been subjected to yet more vague and largely meaningless rhetoric.

It is now imperative that clear, meaningful and quantifiable improvements for autistic people in Scotland are identified for this time period.

E.g. In response to the current crisis in autism diagnostic services in Scotland where there are inconsistencies and widespread unacceptable delays and waiting times, the Outcomes and Priorities document states under Strategic Outcome One: A Healthy Life:

“Autistic people enjoy the highest attainable standard of living, health and family life and have timely access to diagnostic assessment and integrated support services”

In terms of what the Scottish Government says it will do next, it commits to:

“…continue to facilitate improvement for autism assessment and diagnosis for all age groups and genders through Improvement Programmes and the Autism Knowledge Hub.”

This is both unacceptably vague and unmeasurable.

I want the vague goals/outcomes of the current Autism Strategy to be supplemented with meaningful and measurable targets that will guarantee real change for autistic people and their families over the next 3 years and to create a real legacy of improvements in service provision for autistic people in Scotland.

PE1704/A Angus Council and Angus Health and Social Care Partnership submission of 24 October 2018

The petition calls on the Scottish Parliament to urge the Scottish Government to ensure that an agenda of real and meaningful change for autistic people is pursued by introducing 4 targets and outcomes by 2021. The response from Angus Council and the Angus Health and Care Partnership regarding each individual target/outcome, is detailed below.

1. That every person in Scotland going through an autism diagnostic procedure will be assessed within a calendar year and receive a statutory services assessment from a qualified social worker as an integral part of this process, within twelve months from the date of their initial referral.

Currently, an individual referred for ASD diagnosis in Angus will wait between 6 and 14 months due to the high referral rate and resource capacity. The assessment target of within a calendar year would only be realistic if there were enough health professionals to meet this demand.

In relation to all individuals receiving a statutory services assessment from a qualified social worker – currently individuals (with or without autism) first receive a screening/initial assessment, in line with our legislative duties and eligibility criteria. This assessment may or may not be undertaken by a qualified social worker depending on the level of need/risk being presented. Low level need may be assessed by a Care Co-ordinator, for example, who will hold the relevant social care qualification. This differs from a Social Worker’s grade and qualification. It would not be feasible, nor proportionate, for all individuals presenting with low level needs to be assessed by a qualified social worker as there are insufficient resources to do this and it would have an impact for people of greater need/risk/complexity who require the level of skill held by a qualified social worker. People with autism presenting with community care needs will continue to have the same right to an assessment of need as any other adult presenting with social care needs and, depending on their level of need, an assessment may be undertaken by either a qualified social worker or a qualified officer in social care.

2. That children with autism in mainstream schools will have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of a mandatory registration process for ASL professionals.

A new Autism Outreach Team has been established comprised of 3 ASD teachers. This team provides support to schools and families. 9 teachers have undertaken the Autism qualification with Aberdeen University. In addition, some School and Pupil Support Assistants (SPSAs) have completed a Professional Development Award in Autism in conjunction with Dundee and Angus College. This is building a level of specialism and capacity to meet the need within Angus schools; however, it is not considered necessary or feasible for all SPSAs to have a recognised Autism qualification. There is a commitment to staff training in this area which includes the completion of an e-learning module in Autism for all staff.

Core and additional training in Autism has been included in the Learning and Development Strategy for ASN teachers and School and Pupil Support Assistants in Angus. Bespoke training is also provided to schools by the Educational Psychology Service and ASD Outreach Team.

All schools that have received Autism training have also received Autism resources. In addition, the Autism Toolbox has also been provided to support more Autism friendly environments.

There was input at the Children and Learning Festival by Angus Autism Awareness. This group has received support from Economic Development, Angus Council, to crowdfund in order to buy resources which promote awareness of Autism and the sensory issues experienced. This input is delivered by a former pupil who is Autistic. A range of awareness-raising sessions for professionals has also been delivered by this group.

Training to staff supporting adults with ASD has been delivered and staff given the opportunity to undertake the Open University K124 “Understanding the Autism Spectrum” course. Information is provided about Autism and opportunities for work experience promoted with local businesses, including ongoing support to ensure positive experiences. This is done by routinely offering to provide information during Health and Safety visits to all local businesses which offer work experience that are recorded on the local authority database.

An autism training needs analysis survey has been developed and circulated widely across Angus to public sector, third sector and voluntary groups as well as to community groups and facilities. Over 200 responses have been received. This survey will inform future training opportunities.

3. That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

Not all young people with autism wish to access formal support and some do not have an assessed social care need for support – introducing this as a statutory right would be at odds with our current legislative duties and eligibility criteria, should there not be an assessed need for support. This would also place further pressure on existing resources. The principle of response being proportionate to assessed need should, in our view, be retained.

Currently, each young person with Autism in Angus has a Named Person to explain and facilitate the transition process. Transition Passports and other tools are used to support transitions and providers are familiar with these and the roles they play in supporting young people make successful transitions.

A review of school or college and Skills Development Scotland partnership agreements has been undertaken in relation to Career Information and Guidance (CIAG) services provided to young people / adults with Autism.

Information regarding suitable post school courses and links to agencies such as Skills Development Scotland are made available to young people/ adults with Autism. Partners (such as JCP, SDS, Angus Council Skills Team, Opportunities for All Team, Supported Employment Team and Learning Disabilities Teams and all Third Sector organisations) have access to the Autism Directory and an awareness of post-school provision and the ability to signpost Young People and their families.

Young people with autism are undertaking meaningful work placements and progressing into further/higher education, training and employment by the utilisation of employer engagement events to establish links with local businesses, colleges and universities with a view to promoting Autism awareness and necessary supports.

Enable Scotland has been undertaking training with local employers.

Support has been provided to support autistic people into Modern Apprenticeships at both foundation and graduate level.

A system is now in place to benchmark the number of young people with additional support needs including autism who are not in positive destinations. This is done by utilising Transition Conferences and school Joint Action Team (JAT) meetings to identify and encourage early engagement.

4. That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

Whilst we believe that the policy intent can be achieved through existing legislation, we feel that this is for Scottish Government to determine and not individual local authorities and Health and Social Care Partnerships. However, were this to be introduced we would urge the Scottish Government to ensure that this legislation is aligned to the current legislative duties of local authorities and HSC Partnerships and that funding is made available to implement any new legislative duties.

PE1704/B Argyll and Bute Council and Argyll and Bute Health and Social Care Partnership joint submission of 26 October 2018 In terms of Argyll and Bute Council and Argyll and Bute Health and Social Care Partnership (HSCP) it is noted that a localised Strategy for Autism across Health and Social Care Services was launched in February 2017 in collaboration with representatives from the local Autism Strategy Group; Autism Network Scotland; and Autism Argyll and Bute. In conjunction with this, an Implementation Plan was devised focussing on 4 National Outcomes with an emphasis on identifying key actions and timescales involved over a 5-year period.

More recently, Argyll and Bute HSCP established a Short Life Working Group associated with its ‘Transformation Together’ agenda and as part of this process there is renewed commitment to further developing the above Autism Strategy and Implementation Plan to improve services and outcomes for autistic individuals and families. With regard to the petition and the specific points raised please see responses outlined below: -

1. In Argyll and Bute if someone is going through the diagnostic procedure it is recognised that they may not ultimately be diagnosed as being on the spectrum. Even if they are they may not require input from the HSCP or its services. Further support and input largely depends on the severity of individual’s condition and their ability to function and cope etc. In all client categories assessments normally take cognisance of the Partnership’s Priority Framework. (NB: full details can be provided as necessary).

Essentially, Resources are allocated using a ‘Prioritisation of Need Framework’. In common with many other Partnership’s across Scotland, Argyll and Bute HSCP have put in place a prioritisation framework to guide the allocation of resources to those in the greatest need. The need for such a framework is a direct response to the increasing gap between assessed need and available resources.

The prioritisation of all referrals made is based primarily on the information received at the time of referral with Priority 1 (Critical risk where serious harm or loss of life may occur); and Priority 2 (Significant risk where harm may occur now or in the near future) afforded the highest response. Lower priorities tends to be signposted elsewhere).

In terms of the Adult Diagnostic Service, Argyll and Bute HSCP is committed to delivering a sustainable service. However, it is acknowledged that recruitment issues do contribute to diagnostics and waiting lists. Nevertheless, within Children and Families there is a multi-diagnostic service across Argyll and Bute. There is an established management group in place. The service is also planning for the future to ensure additional staff are in place to help satisfy any new demands introduced. Similarly, within Adult Services pathways exist to access direct support from Social Work and/or individuals are signposted to colleagues within the Third Sector dependant on eligibility and priority of need.

2. Argyll and Bute Education Service is committed to ensuring that our teaching and support staff have a clear knowledge and understanding of Autism and the strategies that should be put in place to improve outcomes for children and young people.

The allocation of additional support needs assistant intervention is based on a careful assessment of need, both in terms of the child or young person as well as factors within the educational environment.

Our assistants provide support for children and young people under the direction of the class teacher and where appropriate a wider support team including support teachers, Area Principal Teachers and Educational Psychologists.

Under the ASL Act there is a requirement to ensure that the provision of support is directed to the needs of each child whether or not they have a specific diagnosis. This would include Looked After Children, those with complex learning needs or a disability, those with an autism diagnosis and those who may have an autism spectrum disorder but do not have a diagnosis.

It is important to ensure equity in terms of the skill and training of staff for all children and young people identified as having an additional support needs regardless of any one underlying condition.

In most cases, support is already in place within an educational establishment prior to a diagnosis of Autism being made. Following an Autism diagnosis a Child's Planning meeting is held to consider the outcome of the diagnostic process and review the support being provided including any staff development that may be required.

As all children and young people, whether they have a specific diagnosis or not, will have a unique profile of strengths and needs, it is important to ensure that staff development is aimed at addressing need and barriers to learning rather than focusing predominantly on an overarching label.

3. The young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

As acknowledged above, any requests for advice and support is likely to cover a broad spectrum of people and conditions across a number of services including Learning Disability; Mental Health; and Adult Care. As such, it is accepted that access to specialist support locally will not always be available given the rurality of Argyll and Bute and shortage of suitably qualified practitioners in the area, as well as the wider country. Crucially, despite the challenges Argyll and Bute HSCP continues to explore innovative methods for providing services, including specialist support through greater use of technology in view of the issues of travel across such large geographical areas. Currently, the Partnership has employed a Local Area Coordinator to support people who have a diagnosis, are in involved in transitions from youth to adult services and who are working towards independence supported by the independent living fund etc.

Also, it is recognised that the longer term commitment to young adults with Autism up to age of 25 is likely to require further funding (out with personal care needs) nationally in order to fully reflect the higher unit costs of services in what is a rural and island authority with a dispersed population that prevents economies of scale.

4. That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

It is envisaged once the Autism Act is in place that this will be supported by further frameworks and funding streams on which to focus attention and support individuals diagnosed with Autism in the widest sense. However, once again any changes to legislation and emphasis on new statutory duties will require to take cognisance of raised expectations and possible legal challenge(s) balanced against actuals and what is deliverable within the context of geography, dispersed populations, resources and available staffing, skills and appropriate expertise.

Also, as mentioned already it is recognised that Autism is only one of a large range of conditions and the concept of introducing Autism specific legislation may be perceived at odds with current considerations in respect to wider discussions about the possible combining of legislation in relation to Adult Support and Protection, Mental Health, Learning Disability and the Adults with Incapacity. If so, it is reasonable to question whether further legislation is required to underpin specific conditions.

In summary, Argyll and Bute Council and Argyll and Bute HSCP believe that we have started making positive progress into providing and developing services which are highly specialised and will allow individuals to be cared for and supported locally, wherever possible. As a Partnership we have sought external support and guidance from Autism Network Scotland to ensure that both our initial Strategy and Implementation Plan are refreshed, achievable, and actioned and taken forward within realistic and agreed timescales. There is also other pieces of work and training across Education and the Third Sector which is ongoing and will result in positive and improved outcomes for individuals; families and organisations, alike.

PE1704/C Aberdeenshire Health and Social Care Partnership submission of 29 October 2018

The stipulation that this is a social work assessment seems restrictive and contrary to the interests of an autistic adult. During the diagnostic process the team involved will gain good insight into an individual’s strengths, and areas where the person may require support. There should be a holistic, multi-disciplinary approach to assessment and the team requires flexibility about which professional should lead on this.

The right to a social work assessment is already a statutory requirement, however there is an element of screening in this process to ensure that Social Work Services have an approach that promotes the independence of an individual and makes best use of resources. If on screening, it is established that an individual would benefit from support other than that provided by statutory services, it would seem counterintuitive to proceed with a social work assessment. Individuals, whose initial screening indicate that they require a full assessment, would already be offered this and in a much tighter timescale than twelve months. There would also be an additional demand on staffing resources, which would be detrimental to people who are more at risk, in terms of increasing timescales for their assessment process.

In our view, the focus should be on providing diagnostic and post diagnostic support to adults, based on level of risk and need, rather than condition specific.

Health and Social Care Partnerships do not have responsibility for education and children services.

• That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

We would need more clarity on what is meant by specialist support to provide a fuller response to this point. As previously outlined, we feel that any support provision should be based on risk, need and the outcomes of an individual, particularly as the abilities and support needs of autistic individuals vary to great extent. There is a need to develop a wide variety of services that acknowledges the different level of abilities of autistic adults. While some of this may be exclusive to the specific requirements of autistic individuals, some adults may be benefit from more generic services. Aberdeenshire have focused on providing autism awareness training to ensure that all services, including third sector have the opportunity to upskill their staff in working with autistic people. Furthermore, we feel that setting an age restriction would create issues with access for autistic people over the age of 25, who may continue to require support beyond this age limit.

• That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

We would not support an Autism Act. There is already relevant legislation that is suitable for protecting the rights of any adults that have a condition that may make them more vulnerable than others and ensuring that they receive the assessment and services that they require. Creating condition specific legislation would risk groups with other conditions advocating for their own legislation and potentially create a complex and confusing array of legislation. The rights of autistic individuals are important, however to create an Autism Act implies that this condition has statutory rights that individuals with other specific conditions do not have, which seems inherently unjust.

PE1704/D Glasgow City Council submission of 29 October 2018 That every young person going through an autism diagnostic procedure will be assessed within a calendar year and receive a statutory services assessment from a qualified social worker as an integral part of the process, within 12 months from the date of their initial referral

Response: It has already been determined that referrals for autism diagnostic procedures take, on an average 10 hours to assess, frequently with very considerable individual variation. This is obviously an extensive time commitment required by professionally-qualified staff.

No one test is appropriate for all young people and each individual referral may be assessed using a different combination of tools, for example, Autism Diagnostic Interview-Revised ( ADI-R), Diagnostic Interview for Social and Communication Disorders ( DISCO), Autism-Spectrum Quotient ( AQ), Empathising Quotient ( EQ),Systemising Quotient ( SQ), Krug Asperger's Disorder Index (KADI), Social Communications Questionnaire etc.

In addition, early developmental history is gathered by whatever means possible (interviews with parent if available, partner, family member, early medical records, school reports etc.).

Whilst aspirational, we would question how realistic it would be to expect statutory services assessment to be completed within 12 months of initial referral.

That children with autism in mainstream schools will have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of a mandatory registration process for ASL professionals

Response: Assessed needs for classroom support do not necessarily require that a dedicated Support for Learning Worker (termed an ASL assistant in the petition) would have to be employed to support meeting needs. If this were to be the case, there would potentially be significant funding implications.

Holistically it makes better sense to ensure that all staff within an establishment have the relevant skills and training to allow them to support the needs of young people on the spectrum rather than having an overreliance on one SfL worker or group of staff which can also create an overdependence on an adult.

The term ‘recognised autism qualification’ would need to be clarified as would the reference to a ‘mandatory registration process for ASL professionals’.

Currently Glasgow City Council currently works in partnership with the Autism Resource Centre (ARC) which houses a range of clinical and non-clinical staff. This partnership encompasses Greater Glasgow and Clyde NHS, the National Autistic Society, the Scottish Society for Autism and Strathclyde Autistic Society, and already offers the following services:

• Information Base - advice and information in person, over the phone or through various media, via the information officer; library of current books, articles and service information; computer access to a range of online resources; operation of a duty system so that visitors have access to further specialist support and/or advice; • Training - training to all individuals e.g. professionals, carers and clients; a wide range of training options are provided from one day autism awareness training to high level diagnostic training; training is also available on an outreach basis; • Adult Autism Service - diagnosis and assessment (via community based clinics); individual & group interventions; support and linking to services; drop-in facility; user-led interest groups; • Development Team - strategic planning for autism services; partnership working with mainstream services and care groups; ensuring standards of service delivery for all individuals with Autism Spectrum Disorders; helping Greater Glasgow and Clyde Health Board and Glasgow City Council ensure that they meet national standards through involvement in a range of Parliament/Executive- led reference groups; ensuring consultation and participation for people with ASD. The ARC provides training to approximately 1,500 people per year at a range of levels to a wide range of professionals and carers. Evaluations show that 95% and above of people who attend this training find it be 'relevant' or 'very relevant' to their everyday practice.

That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25 Response: We would suggest that this should this read ‘will have a statutory right to be assessed for specialist support’. Having autism does not necessarily mean that every young person needs specialist support. That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system Response: We would support this aspiration. PE1704/E Scottish Government submission of 30 October 2018

The Committee can be assured that the Scottish Government is committed to improving the lives of autistic people in Scotland. Firstly, following an engagement exercise last year the Scottish Government published a comprehensive analysis of that engagement 1 and refreshed its priorities they were published in March 20182. This publication was jointly agreed with Ministers and COSLA. It is recognised that a concerted effort across all sectors is required. Secondly, in the Programme for Government we reiterated our commitment to transforming the lives of autistic people and addressing the inequalities, they can face throughout their lives. The refreshed priorities focus on ensuring people with autism live healthier lives, have choice and control over the services they use, and are supported to be independent and active citizens. We are committed to delivering those priorities by 2021.

There have been a number of tools and resources developed through the strategy to support local practioners right across statutory and third sector bodies in Scotland and these are highlighted where relevant in this response.

In terms of the Petition target that every person in Scotland going through an autism diagnostic procedure will be assessed within a calendar year and receive a statutory services assessment from a qualified social worker as an integral part of this process, within twelve months from the date of their initial referral.

Diagnostic waiting times have always been a challenge for NHS Boards and since 2011; there have been strategy investments in NHS Boards to improve diagnostic waiting times. This continues to be a challenge in terms of capacity and resource. Initiatives have included the development and the sharing best practice in child diagnostic pathways and the development of an adult neurodiversity pathway. Strategy investment has gone into training in diagnostic assessment tools such as DISCO and ADOS. In partnership with NHS NES, we fund an Autism Training Team who developed the ASD Training Framework3 - detailing the knowledge and skills required at different levels within the workforce to achieve key outcomes for people with ASD. The Training Plan 4 outlines the training that is needed to fulfil the requirements of the NHS Education for Scotland Autism Training Framework by (i) identifying currently available training; (ii) identifying gaps in training provision, and, where appropriate, (iii) guiding the commissioning or development of appropriate training.

The Scottish Government has committed to continue to work with NHS Boards and special boards to build the knowledge of autism amongst staff to improve access to services for autistic people and reduce waiting times by sharing improvement initiatives and sharing best practice through Improvement Programmes and the Autism Knowledge Hub. There has been no specific discussions on a waiting times target but a recognition that varying waiting times across Scotland are too long and should be improved. There is a recognition that this can’t be achieved solely by one strategy and that work across government is required to

1 http://www.autismnetworkscotland.org.uk/files/2018/04/The-Scottish-Strategy-for-Autism-Engagement- Analysis.pdf

2 https://beta.gov.scot/publications/scottish-strategy-autism-outcomes-priorities-2018-2021/

3 http://tailoredfoundation.co.uk/wp-content/uploads/2014/12/NHS-Education-for-Scotland-Autism-Training- Framework-Optimising-Outcomes.pdf

4 http://www.knowledge.scot.nhs.uk/media/9595218/asd%20web%20final%20%282%29.pdf make the necessary improvements in services for example Mental Health services, including CAMHS.

The Scottish Government commissioned Dame Denise Coia to lead a Child and Young People’s Mental Health Task Force5 to consider a programme of work to improve MH services. It is expected the needs of autistic children and young people will be considered in this programme of work.

The Scottish Intercollegiate Guidelines Network has also produced a renewed autism guideline. The guideline provides recommendations for best practice in the screening, surveillance, diagnosis, assessment and clinical interventions for children and young people with ASD. NHS Boards should be following these guidelines in delivering autism services. It also incorporates evidence and recommendations on assessment, diagnosis and interventions for adults with ASD. The guideline will be of interest to healthcare professionals and other multiagency colleagues who work with children and adults with ASD, as well as people with ASD, their parents, carers, relatives, partners and others with whom they interact.6

The Patient Rights (Scotland) Act 2011 gives everyone receiving NHS services the right that the health care they receive will consider their needs, consider what would most benefit their health and wellbeing, encourage them to take part in decisions about their health and wellbeing, and provide them with the information and support to do so. The Charter of Patient Rights and Responsibilities says: You have the right to have your needs taken into account when receiving NHS services - • Your Health Board must take account of your needs when providing health services. • However, your Health Board must also consider the rights of other patients, clinical judgement and the most efficient way to use NHS resources.

The diagnosis of autism spectrum disorder is based on a clinical assessment. NHS Boards refer through different local pathways, some people with autism and a learning disability are assessed through Learning Disability Services, and in some Boards specialist autism diagnostic services are available and in some appropriate referrals are made to Mental Health (MH). MH services are clinically triaged according to severity and risk and go onto a waiting list to see an appropriate mental health professional. The referrals that go to a specific autism mental health service may have a standardised assessment that differs from the more generic mental health assessment done in a community mental health team or indeed a primary care team. There is no one size fits all – so applying an assessment standard of within a calendar year does not make clinical sense. All appropriate and accepted referrals to a community mental health team would be normally seen in a matter of weeks. Referrals for psychological therapies are subject to an access standard of 90% within 18 weeks and this is monitored centrally by ISD.

Whilst Scottish Government provides NHS Boards with the tools and resources to deliver autism diagnostic services in Scotland how those services are delivered in terms of, waiting times for diagnosis are the responsibility of the Health and Social Care Partnerships.

Autism spectrum disorder represents a spectrum of need and complexity – with some severe disabled people at one end and others who function well with minimum difficulty. Social work

5 https://www.gov.scot/Publications/2018/09/9044

6 https://www.sign.ac.uk/sign-145-assessment,-diagnosis-and-interventions-for-autism-spectrum-disorders.html worker assessment is not appropriate, nor necessary for many so it would be inappropriate to make it a requirement of autism spectrum assessment and management.

Work is underway to look at adult social care reform and in that programme of work in terms of the gap between referral and assessment, we have been offering limited support of a Health Improvement Scotland member to work with the Community-led Support areas. As part of wider work aimed at improving their systems, the four sites in Scotland currently) have seen:

• Reduced waiting times e.g. between first contact and an initial (first) conversation and between that conversation and accessing support of some kind; • Reduced waiting lists i.e. numbers of people waiting to be seen/accessing support; • Devolving financial decision making to community teams and front-line practitioners within agreed parameters leading to timely decisions • A link between more people using different access points (including community hubs and drop ins), reduced waiting times/lists and quicker access to support; • Holistic solutions as community teams pool expertise and information to offer, for example, friendship groups and social activities alongside mobility aids and carers’ support; • The same or lower cost of providing different services (e.g. community vs acute, different support options) with better outcomes for people.

Given these outcomes, we hope to increase that capacity to another four local authorities next year.

Whilst Social Workers would not be involved in diagnosis they do have the responsibility to assess needs and to care plan and to arrange care where needed – including Self Directed Support. This responsibility is identified in the Community Care and Health (Scotland) Act 2002, Self-Directed Support (Scotland) Act 2013, the Children’s (Scotland) Act 1995 and the Children & Young People Act 2014. The primary legislation for all of this is the Social Work (Scotland) Act 1968. It is the responsibility of Health and Social Care Partnerships to undertake assessments of need and make care plans, where necessary.

In terms of the Petition target that children with autism in mainstream schools will have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of a mandatory registration process for ASL professionals.

Children with autism in mainstream schools will have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of mandatory registration for ASL professionals. We are clear that for children to get the right support in school it is important that their individual needs are known and understood. To support this, needs assessment for pupils is a part of their day-to-day learning and teaching in schools. This starts in ELC and continues throughout a child or young person’s time in school. This should not be a one-off activity, but a process of gathering information to get a picture of a child’s progress. There is currently no recognised autism qualification for teachers to complete. All teachers provide support to pupils not just ‘support for learning’ teachers. Assessment is carried out by teaching and support for learning staff in school. Although for most pupils, assessment is part of day-to-day learning in school, some pupils may have more complex needs with parents or professionals identifying that a more in-depth type of assessment or examination is needed. In this case, a specific assessment or examination may be needed, involving teachers, parents and carers, as well as professionals.

Student teachers training in Scottish universities are training to achieve the Standard for Full Registration (SFR) and therefore to be registered with The General Teaching Council for Scotland as the independent, regulatory body for the teaching profession and has the legislative functions of regulating and being the custodians of the suite of Professional Standards for teachers. The SFR specifies what is expected of a teacher who has successfully completed their teacher education course and is defined in terms of benchmark statements. These statements also specify the design requirements for programmes of teacher education provided in universities. One of the expected features of the SFR at 3.1.4 “Professional Skills and Abilities" is that "Registered Teachers identify effectively barriers to learning and respond appropriately, seeking advice in relation to all learners’ needs as required.

The current mechanisms for influencing the content of Initial Teacher Education (ITE) provision are through the GTCS Evaluation Framework for the Accreditation of ITE Programmes and the GTCS Standards for Registration. The evaluation framework confirms that it is for GTCS to set the policy on the content, nature and duration of programmes leading to teaching qualifications (TQs) for the primary and secondary sectors and to ensure these requirements are met through the accreditation of all programmes of Initial Teacher Education (ITE) in Scotland. Very specifically, this framework confirms that GTCS requires ITE providers to provide ‘an outline of how student teachers are supported to develop an understanding of current national policy and to make a positive contribution in areas such as Inclusion (including Additional Support Needs); and that ITE providers are required to ‘outline how programmes are designed to develop and promote equality, diversity and address any potential discrimination to embrace diversity, challenge discrimination and promote the equal opportunity requirements laid down by statute.’

The professional standards confirm the values and personal commitment that is core to being a teacher, which includes ‘valuing as well as respecting social, cultural and ecological diversity and promoting the principles and practices of local and global citizenship for all learners’; that all teachers must have ‘an understanding of current, relevant legislation and guidance such as the Standards in Scotland’s Schools etc. Act (2000), Education (Additional Support for Learning) (Scotland) Act 2004, the Equality Act 2010 and GIRFEC’; and that teachers must ‘know how to promote and support the cognitive, emotional, social and physical wellbeing of all learners, and demonstrate a commitment to raising all learners’ expectations of themselves’.

In the refreshed autism strategy priorities the Scottish Government has committed to reviewing the current autism resource in schools - the Autism Toolkit7 to better meet the needs of teachers and education staff working with autistic pupils. We have also committed to exploring with Strathclyde University a pilot in their Initial Teacher Education provision.

In terms of the Petition target that young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25. There are various guidance materials available e.g., Getting It Right for Every Child (GIRFEC) guidance8 and the Principles of Good Transitions 3 Autism Supplement 9 to support practioners deliver specialist support to autistic young adults.

7 http://www.autismtoolbox.co.uk/

8 https://www.gov.scot/Topics/People/Young-People/gettingitright

9 http://www.autismnetworkscotland.org.uk/the-principles-of-good-transitions/

We have committed to ensure that that each young person be offered an appropriate place in post 16 learning to equip them with skills and knowledge to progress into adulthood. Local authorities have duties to plan for a young person with additional support needs leaving school, and must consider the needs of each young person with additional support needs when helping them plan for leaving school. They should do this by working in partnership with agencies to identify opportunities for each young person leaving school – including those with additional support needs. In addition to this, if a child or young person wishes to go on to further or higher education then the Local Authority may provide adequate and efficient education whether this be in schools or other places, such as colleges

In terms of the Petition target that an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system. In 2010, Hugh O'Donnell MSP introduced a Private Member's Bill to the Scottish Parliament – the Autism (Scotland) Bill. Then – as now – there was no legislation that related specifically to autistic people. The Bill's objective was to place a statutory duty on the Scottish Government to 'prepare and publish a strategy to meet the needs of children and adults with autism; consult with appropriate organisations and people; and issue statutory guidance to local authorities and health boards on their services for children and adults with autism'.

Stage 1 of the Bill commenced on 10 November 2010, with the Education, Lifelong Learning and Culture Committee as lead Committee. The Committee considered a substantial body of evidence from autistic people, their families, carers and support organisations. Those who participated in the Committee's evidence sessions generally welcomed the idea of introducing a national autism strategy, and the Committee itself was convinced such a strategy could help ensure that services were delivered more effectively for autistic people.

Later in 2010, following the Bill's introduction, the Scottish Government published a draft autism strategy for consultation - Towards an Autism Strategy for Scotland. The Government argued that legislation was not required to underpin such a strategy, while existing inclusive legislative measures already made provision for people with additional support needs, including autism. While those in favour of the Bill said these existing measures had not been implemented effectively, the Committee felt there had not yet been sufficient passage of time to properly evaluate their impact. The Committee also said it was inappropriate to introduce new legislation as a countermeasure to the poor implementation of existing legislation.

After due consideration the Committee concluded that the Autism (Scotland) Bill, as it was introduced, would not create robust enough obligations for local authorities and health boards to deliver meaningful change to services for autistic people. Resources, the Committee said, would be better used if they focussed on implementation of existing legislation and duties. As such, the Committee recommended to Parliament that the general principles of the Bill not be agreed to, and the Bell fell at Stage 1.

In the autism strategy engagement last year the appetite for an Autism Act was not high on the issues autistic people and their families felt were better needed to improve their lives. The engagement analysis10 bears this out. Given that there is there is currently little appetite, we still think it inappropriate to introduce new legislation to countermeasure the implementation of existing legislation. Even if there was an appetite for an Autism Act and Minsters signed up to it, given the parliamentary timetable they could give no firm guarantee that it would be passed within the 5 year period.

10 http://www.autismnetworkscotland.org.uk/files/2018/04/The-Scottish-Strategy-for-Autism-Engagement- Analysis.pdf The Committee may wish to note that the Scottish Government invested in a piece of work to determine the economic cost of autism in Scotland. The Microsegmentation Report11 was published earlier this year and it highlights per capita costs for autism with the aim of informing local autism strategy and planning. Scottish Autism published a service provider response12 to that report and made a number of calls for action for consideration at national and local level.

Whilst the response above details the policies, frameworks, guidance and resources available in Scotland, we accept that much more needs to be done to improve the lives of autistic people in Scotland. We will continue to work with relevant statutory bodies and third sector partners to ensure that the inequalities autistic people face daily are addressed across all sectors including education, health and social care.

11 http://www.autismnetworkscotland.org.uk/files/2018/04/The-Scottish-Strategy-for-Autism-Engagement- Analysis.pdf 12 https://beta.gov.scot/publications/microsegmentation-autism-spectrum/

13 https://www.scottishautism.org/news/service-providers-response-microsegmentation-report

11 https://beta.gov.scot/publications/microsegmentation-autism-spectrum/

12 https://www.scottishautism.org/news/service-providers-response-microsegmentation-report

PE1704/F North Ayrshire Council submission of 30 October 2018

North Ayrshire Council welcomes the opportunity to respond to the Public Petitions Committee regarding Petition PE 1704, “Calling on the Scottish Parliament to urge the Scottish Government to ensure that an agenda of real and meaningful change for autistic people is pursued by introducing the following targets and outcomes by 2021.

• That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

• That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.’

Children in North Ayrshire with Autism do have their needs assessed through our staged intervention and Child's Plan process. This process acknowledges their autism and identifies the effect it has on their lives. A number of specific targets based on wellbeing are set in response to the child's individual needs and support is allocated from a core budget to support them.

This support is not met necessarily with the deployment of an Additional Support Needs assistant with a recognised Autism qualification. However a programme of Autism tiered training within a framework has been designed and made available to build capacity in our teachers and classroom assistants to support Autism.

Our Autism strategy provides Autism training for mainstream practitioners; for our primary and secondary Autism educational support resource bases and for our Additional Support Needs school staff. With children of pre-school age, our home visiting team and early years language resource liaise with families and Early Years Centres to provide support and advice to meeting their autism needs. All training is designed; annually updated and delivered by Educational Psychologists in partnership with parents of children with Autism, individuals with Autism, and with specialist establishment staff.

The Council/HSCP hopes the above information is of assistance to the Committee. I:\ESPUBLIC\Directors\CAROLINE AMOS\Scottish Parliament Petitions\Response to ‐ Consideration of Petition PE 1704.docx

In the context of adult services, North Ayrshire is an active partner in the delivery of a broad ranging pan-Ayrshire Autism strategy aimed at encouraging appropriate access to services for people with autism, including delivery of training at very various levels to complement relevant expertise where it already exists, and exploring means of addressing recognised issues in relation to assessment and diagnosis. Crucially this work will also be paying attention to access to services prior to diagnosis. From a North Ayrshire perspective, all of this work is occurring in the context of an ongoing commitment to ensure that people, whatever their needs, can get access to appropriate supports within their community and from statutory services where appropriate. We recognise that all individuals and the communities they live in have assets, and in many circumstances it is the support and development of these assets that will lead to better outcomes, and a more inclusive society.

I:\ESPUBLIC\Directors\CAROLINE AMOS\Scottish Parliament Petitions\Response to ‐ Consideration of Petition PE 1704.docx PE1704/G Stirling Council submission of 30 October 2018

Comments from Children and Families

These comments have been developed following discussion within Children’s Services – representing Schools, Learning and Education and Children and Families.

The first aspect of this question is best addressed by CAHMS, who have presumably been asked for their views separately. From a Children’s Service perspective in Forth Valley the diagnostic process can and does work well and often in a timely way. We would like to enhance the partnership nature of this work and have plans to meet with colleagues across Forth Valley to address this. In individual cases there can be delays and frustration about the process from parents and we feel that two other things may help with this

1) Clearer, timely protocols and communication about the processes followed, so that individuals and families know what to expect as they go through the experience 2) Clarity about the complex nature of diagnosis in some cases, where there are multiple complex factors to be considered

Setting a year as a limit is not the change that we feel would be most appropriate to resolve these concerns. A services assessment from a children and families social worker is not always wanted by individuals or families following diagnosis. Clear signposting to services and partnership approaches to support, in line with existing legislation – ASL Act and CYP Act make this support available to individuals as and when it is required. Locally we have changed referral procedure to ensure that access to social work support is not delayed by our processes, when support is required for the reason of a disability. In adult services support from a qualified social worker is delivered in line with a nationally recognised eligibility criteria, and the access to services may equally be identified and signposted by other staff or services. Ongoing work to support independence and a ‘normal’ life for people with disabilities aims to provide the support required at the level required rather than to escalate every situation to statutory services. There is an existing statutory responsibility to assess subject to the Social Work(Scotland) Act 1968, Section 12.

• That children with autism in mainstream schools will have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of a mandatory registration process for ASL professionals. The assessed needs of children with autism are met in schools by a wide variety of approaches. It is the role of teachers, to lead on this work and support from a support for learning assistant may be identified as appropriate to enable some aspects of learning and development. The question of support provision, often seems to be simplified to the provision of hours of support assistant time, rather than reflecting the work of a team around a child in line with the ASL Act and Staged Intervention processes, used to plan to meet the needs of all children who have identified additional support needs. Research shows that support assistant time can support engagement positively but can also decrease attainment and the focus is on helping children to develop strategies and skills for independence and to support the leading of a ‘normal’ life. Learning and development required by teachers and support staff often needs to be bespoke to the child and provision of generic training is only one aspect of the work to support school staff to best support children with ASN including ASD.

• That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

It’s not clear why this statutory right would be made available to people with autism, rather that all people with ASN or disabilities. Locally we are working with adult services to address some challenges which arise at the transitions stage. We are aware of parental concern about challenges associated with the different models of support delivery, which reflect need and individual presentation at the children’s stage, but may meet a different threshold at the point of transition to adult services. All people can already access services required when they meet the criteria for that service and assessment of need is already mandated in legislation. We were not clear how a statutory right would add to this.

• That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

There is a significant bank of legislation and guidance in place which covers the concerns leading to this petition – The ASL Act, the CYP Act, Children’s Scotland Act, Social work Scotland Act and Refreshed Guidance ‘Included, Engaged and Involved Part 2: a positive approach to preventing and managing school exclusions, all cover these concerns for all with additional support needs, including autism. People with an autism diagnosis are a very broad group, some who will need significant and ongoing support and others who will not, or who will be able to access support as required. We don’t believe that additional and specific legislation would be a step forward in ensuring that there is consistency of appropriate support available across all local authorities.

Comments from Regeneration and Inclusive Growth: 1) From an equalities perspective, the introduction of a series of targets designed to provide a framework for securing the quality and consistency of services and support for children , young people and adults with autism across Scotland should in principle be welcomed.

2) The need for these, their proposed nature and the implications for current service provision is within the Stirling Council area is out with my field of knowledge but I understand is being considered by colleagues in Children & Families.

3) The proposed introduction of statutory right to support for young adults with autism up to the age of 25 is very similar to that provided for care leavers.

4) The proposed introduction of an Autism Act continues the demand for an increased focus on and specific rights and services for people within the current ”protected characteristic groups” identified under the Equality Act 2010. Current examples of this are the Carers Act and the British Sign Language ( BSL ) Scotland Act 2015. Whilst this trend is likely to continue and from an equalities and human rights perspective should be welcomed, the resulting challenges for service providers , including local authorities will be significant and will requires Scottish Government support if these are to be met in a meaningful and consistent manner .

PE1704/H Autism Network Scotland submission of 30 October 2018

Autism Network Scotland (ANS) is one of the Scottish Government (SG) independent delivery partners for the Scottish Strategy for Autism and is based in the University of Strathclyde. SG identifies a work programme with us which is then monitored, reviewed and revised. More broadly, the University provides a wide range of education and training about autism consisting of anything from basic understanding through to a Masters programme. Overall our role is to develop and promote good and positive practice. My comments are informed by both roles.

As the Petitions Committee will be aware, the original Scottish Strategy for Autism focused on the needs of adults. This was the recommendation of the Health Committee that scrutinised the Private Members Bill who were of the view that children and young people on the spectrum would be able to benefit from mainstream legislation and policies such as GIRFEC and from additional support for learning statute. This approach has changed as a consequence of the recent refresh of the Strategy which sets out priorities that emerged from a public engagement exercise.

This is not to say that there were no child based initiatives up until this point. A major push was in relation to transitions up to the age of 25 and resulted in a Good Principles of Transitions Autism Supplement which identifies seven principles of good transitions and how to go about achieving these in practice. The Scottish Intercollegiate Guidelines Network has also produced a renewed autism guideline that sets standards for the diagnosis and assessment of autism.

Other significant tools directed at improving practice are the NES Training Framework which describes levels of knowledge required for different roles which was originally targeted at health staff but has broadened out and is transferable to other disciplines. The autism toolbox is available to teaching staff across Scotland having been developed by Scottish Autism with some support from ourselves. Training in the use of self-directed support has also been valuable as has the positive partnership initiative with parents to build their knowledge and capacity.

So a lot of necessary thought and effort has gone in to creating the means to diagnose and assess as well as to educate and train staff. Individuals and families are appreciative of these developments where little existed before.

But this Petition is largely asking for direct services to individuals and families and not the underpinning support structures. Autism specific statistics are not always held centrally in that categories are not subdivided in this way but those of us who work in this area know anecdotally that some individuals are waiting longer than a year to be diagnosed and that the stages from referral through to diagnosis and then support can all have setbacks. We also know that the qualification level of staff involved in assessment of need that follows diagnosis varies with some practitioners being informed and others less so.

The Committee is already aware of the findings of the Not Included, Not Engaged, Not Involved report which makes several calls for action to improve the education of autistic children and young people. Having skilled practitioners is vital in enabling autistic children not to be excluded and the University of Strathclyde is currently considering how to improve teacher education programmes so that our graduates will have some knowledge of autism prior to classroom teaching.

The level of change that the Petition requires would need considerable additional resource. The recent publication of the Microsegmentation Report which quantifies economic costs of autism is a useful reference point here in that it highlights per capita costs for autism and other conditions such as dementia where the spend is shown to be considerably higher.

Access to timely diagnosis and of the diagnostic profile should be a right and would increase the likelihood of earlier effective intervention. Additional resource would provide the opportunity for higher levels of trained ASL staff within the classroom, both as teachers and support staff. It would also make it possible to provide specialist support until the age of 25. Scotland has already been down the road of considering an Autism Act and decided against in favour of the Strategy. I suspect that the author of the Petition sees potential statute as a means of unlocking resources. autistic children and young people. Having skilled practitioners is vital in enabling autistic children not to be excluded and the University of Strathclyde is currently considering how to improve teacher education programmes so that our graduates will have some knowledge of autism prior to classroom teaching. The level of change that the Petition requires would need considerable additional resource. The recent publication of the Microsegmentation Report which quantifies economic costs of autism is a useful reference point here in that it highlights per capita costs for autism and other conditions such as dementia where the spend is shown to be considerably higher. Access to timely diagnosis and of the diagnostic profile should be a right and would increase the likelihood of earlier effective intervention. Additional resource would provide the opportunity for higher levels of trained ASL staff within the classroom, both as teachers and support staff. It would also make it possible to provide specialist support until the age of 25. Scotland has already been down the road of considering an Autism Act and decided against in favour of the Strategy. I suspect that the author of the Petition sees potential statute as a means of unlocking resources. PE1704/I Dundee City Council submission of 31 October 2018 We support the need for timely assessment for children and young people who may have Autism. The Principles of Good Transitions 3 sets out seven principles and the duties of professionals in education, social work, health and the third sector in supporting young people with additional support needs between the ages of 14 and 25. However, the process of assessment should be one which is a multiagency community assessment involving staff from both the local authority as well as Health, and the focus of any social work involvement should be proportionate to needs and risks identified within the wider multiagency team. 1. Additional support for children and young people with Autism in mainstream schools is provided through adaptations to the learning environment, which may include support assistants. However, a sole focus on this form of support is limiting, and does not take into account the wider evidence base relating to the impact of learning/teaching assistants (REF here). Rather, the mandatory requirement should be for all mainstream schools to provide an Autism-friendly learning environment which addresses the curriculum (including sensory curriculum) and pedagogy for children and young people with ASN. Staff training and development should be provided by local authorities for all staff who work with Autism. DCC provides an e-learning module on Autism for all employees, which is the first stage of its staff development framework for Autism.

Education Scotland have developed an online module to support school staff in their understanding of inclusive practice, including Autism, along with the Autism Toolbox which staff in schools are sign-posted to.

We are in support of professional recognition and registration for all support staff working with children, young people and adults who have additional support needs and/or disabilities.

Dundee CC has a long-standing partnership agreement with D&A College which requires all ‘support assistant’ students on the PDA Programme for ASN to undertake the Autism module within their training. All current employees have been audited in relation to their skills and qualifications profile and the majority have undertaken the Autism module within their training.

2. We would suggest: Adults with Autism will have a continuing right to appropriate and proportionate support from the local authority in adult life.

3. The Autism Strategy for Scotland has provided a strong basis for addressing the rights of autistic people over the last 10 years. The Additional Support for Learning (Scotland) Act, 2004, revised 2009, 2018 makes provision for all children and young people with ASN and is inclusive of those with Autism. It is questionable whether an act which is specific to Autism would add any value to current legislation; and could arguably disadvantage and be discriminatory against children and young people with other assessed needs and alternative diagnoses. Implementation of the ASL Act addresses all needs in an equitable way, regardless of diagnosis or label. PE1704/J East Ayrshire Council submission of 31 October 2018

Education Perspective:

We welcome the proposed targets and outcomes listed below, however there are implication pressures within the proposed 2021 timescale and although the Ayrshire and Arran Autism Strategy 2015- 2025 outlines key priority areas in relation to practice, training and support for children and adults with autism, the planned outcomes, within this document, stretch beyond 2021.

We would welcome a consistent multi-agency approach across Scotland as this would assist service delivery and planning with our colleagues within health and social care.

We would support the proposal for training opportunities to focus on autism, however if a mandatory qualification is introduced, there would need to be clear guidelines and access to appropriate training to enable the present workforce to develop at a suitable pace. There are also funding implications.

The Ayrshire and Arran Autism Strategy 2015-2025 highlights multi-agency training as a key opportunity to share good practice across departments, agencies and localities.

Key Priorities: • Develop and deliver a shared ASD Training Plan in conjunction with Community Planning Partners. • Provide awareness training for all staff dealing with the public across statutory services - including the three councils, NHS, criminal justice services and others (and including commissioned services). • Establish service areas where ASD training should be mandatory (e.g. primary healthcare providers; teachers/classroom assistants; pre-school providers; social work...). • Support training/awareness raising for local businesses and organisations. • Support regular public awareness events across Ayrshire. • Explore the use of online training opportunities, for example ASK Autism15. • Explore the role of people with autism and carers in the delivery of training.

• That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

We would welcome this support in principle, however it has funding and service implications.

• That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system. Once more the idea of consistency across Scotland would be welcomed, however service re-delivery and design would need to reflect the expectations of an Autism Act and cognisance taken of the training and investment that would need to be undertaken to ensure that the terms of new legislation can be fairly and legitimately delivered.

The Ayrshire and Arran Autism Strategy 2015-2025 highlights the following key points which are notable:

“A key challenge in Ayrshire, and across Scotland, is ensuring we have the necessary strategic leadership in place to take forward the autism agenda. Given the wide range of service providers supporting people with autism (health, social care, education, children’s services etc.) and the absence of dedicated autism teams at the local authority level, it has been challenging historically to identify officers with a clear lead responsibility for autism. As such, it is important that we put in place structures that will provide strategic leadership around autism.

We have begun this process during the development of this strategy by setting-up the multiagency Ayrshire Autism Partnership. This partnership recognises that a wide range of partners are responsible for supporting people with autism in Ayrshire and that they need to work together to deliver a more joined-up, strategic approach. The Partnership, will lead the development of joint strategic planning and stronger local policy to support people with autism and their carers.”

The following extract from the strategy offers an insight into the current support for children within East Ayrshire.

EDUCATION - EAST AYRSHIRE

Crosshouse Communication Centre The Communication Centre is based within Crosshouse Primary School, consists of five classes situated across the school, and aims to provide small group teaching and learning experiences, targeted approaches to meet social communication and language needs for children from P1-P7. This Centre provides a mainstream curriculum, differentiated as appropriate, with flexible opportunities for inclusion and integration planned and reviewed on an individual basis. Speech and Language Therapy staff are involved in supporting the pupils' plans within a team approach with education staff.

Loudoun Communication Centre The Communication Centre is based within Loudoun Academy, and aims to provide support to young people with autism, and related communication difficulties, to access a mainstream secondary education in as successful a way as possible, utilising a combination of small group teaching and learning experiences, targeted approaches to meet social communication needs, and support into mainstream classes and activities as appropriate. This Centre provides a flexible approach to inclusion and integration, planned and reviewed on an individual basis.

Communication Outreach Service East Ayrshire operate an outreach service to establishments working with children and young people with communication difficulties, including autism. The role of the service can include staff development and training, consultation to teaching and non-teaching staff regarding individual support planning, and also direct work with young people if assessed to be required. Additional provision for children and young people with autism and related communication needs is also provided across mainstream establishments, potentially utilising support via the Outreach Service when and where required.

Within East Ayrshire there are three special schools and four Supported Learning Centres that meet the educational needs of children and young people with autism and with a variety of other additional support needs.

East Ayrshire’s Supported Learning Centres provide education for children and young people with significant additional support needs within a mainstream school environment, allowing for flexible inclusion opportunities dependent upon the individual strengths and needs of each pupil.

• Patna Supported Learning Centre • Barshare Supported Learning Centre • Cumnock Supported Learning Centre • Doon Supported Learning Centre

East Ayrshire’s three special schools provide education for children with significant additional support needs, including those with severe and/or complex needs.

• Hillside School • Willowbank School • Park School

Educational Psychology Educational psychologists promote learning, wellbeing and development of children and young people from birth to young adulthood. They work with staff, pupils, parents and other professionals to help identify educational needs and strategies to meet those needs. They also carry out research and help develop policy and practice.

Each school and early years’ establishment has an assigned psychologist. Where there are concerns for a young person, the psychologist may:

• consult with young people, parents and teachers about learning and behaviour; • gather information across different contexts in which the child functions, including family, community and educational setting via, for example, dialogue and observation • identify strengths and areas where help is required; • link with parents and other professions as part of the collaborative process; • advise parents and others about support needs.

Educational psychology services also provide training on the full range of additional support needs including autism spectrum disorders.

Educational psychology services also provide targeted training on additional support needs that affect a minority of pupils including autism spectrum disorders. There is an appetite in Ayrshire and across Scotland for a more consistent approach to support children and young adults with autism. The Ayrshire and Arran Autism Strategy 2015- 2025 sets out our clear direction of travel regarding multi-agency partnerships; future planning and training aspirations. Extending the support to children and young adults through an improved and consistent service across Scotland, via the named targets and outcomes within the petition, is a positive proposal but there are potential financial implications at local level that would need to be considered. PE1704/K Scottish Secondary Teachers’ Association’s submission of 31 October 2018

The Scottish Secondary Teachers’ Association is Scotland’s only specialist union for Secondary Teachers. The union was set up to ensure that the secondary education view is properly represented. The SSTA has approximately 7,000 members across all positions, including headteachers, in secondary schools.

The SSTA strongly supports the second point (relevant to educational provision) of the petition. They also recognise that appropriate diagnosis and the availability of supporting services (point 1 of the petition) for children and young people with autism is essential to their educational progress throughout their school years.

The committee also asked for the SSTA’s views on training and support for educationalists (teachers and auxiliary staff) in the area of autism. Currently, there is no statutory requirement for teachers or PSAs to have any specialist training in this ‘additional support need’ area.

Many teachers feel underqualified and trained to support the children and young people in their care. They would welcome any training made available to them both in mainstream and in specialist settings.

SSTA advocates that maximum class sizes should be reduced by 2 pupils for every pupil in the class with autism. A bigger reduction would be necessary to allow appropriate classroom management when more than one pupil with autism in a class.

Teachers also recognise the invaluable support auxiliary staff gives children and young people with autism. This often makes the difference between a child or young person with autism managing mainstream education or not.

Our evidence for this is not anecdotal. SSTA members through motions at national Council and Congress have given the SSTA Executive the mandate to demand, of Scottish Government thorough legislation and local authorities through resourcing, adequate levels of staffing and appropriate training for teachers and auxiliary staff in order to best support children and young people with additional support needs including those with autism.

PE1704/L South Lanarkshire Health and Social Care Partnership submission of 31 October 2018 1. Purpose of Briefing Paper/Discussion Document 1.1. The purpose of the report is to:- • report to the Public Petitions Committee the views on the consideration of petition PE1704. 2. Summary of Recommendation(s)/Actions Required (1) that the information contained in the present response to reply to the Public Petitions Committee call for a considered response to the four points presented to the Committee (below) also be noted. 3. Background 3.1. The four points of consideration were presented to the Petitions Committee as follows: • “that every person in Scotland going through an autism diagnostic procedure will be assessed within a calendar year and receive a statutory services assessment from a qualified social worker as an integral part of this process, within 12 months of the date of their initial referral” • that children with autism in mainstream schools will have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of a mandatory registration process for ASL professionals • that young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25 • that an Autism Act will be in place within the next five years to enshrine specific rights and services for autistic people in our legal system.” 3.1.1. Each specific bullet point will be addressed in turn. 4. Current Position 4.1. Bullet point 1 – current service standard timescales within NHS Lanarkshire (NHSL) are clear in that every person accepted as requiring an autism assessment will be seen within 9 -12 weeks. The most recent figures indicate that in 2017-2018 the following autism diagnoses were made:

Quarte Nort Lanarkshire as KPI South Notes r h a whole Community 2017/1 - - Community Paediatrics 8 Q3 Paediatrics is not on TRAK as yet so no figures available. Speech and 81.7% at 9wks Language 94.5% at 12wks Therapy

• Community Autism Service (CAS) Local Community Autism Diagnostic teams were established in September 2014. These consist of a Community Paediatrician and an SLT or Health Visitor with specific further ASD training. The teams gather information from all professionals involved and observe the child in nursery/primary school. A clinic appointment allows the team to carry out specific activities to assess a child’s mix of skills and difficulties and take a detailed specific ASD case history form the child’s parents/carers. All this information is considered and used to reach a diagnostic conclusion. This process is developmental along the universal pathway of health care provision and is not a referral and diagnosis pathway with a dedicated guarantee or waiting time. The children will be seen initially via Speech and Language or Community Paediatric clinic lists. Community Paediatrics is not yet monitored on TRAK

• at Q3 end, Speech and Language Therapy Waiting Times are 81.7% at 9wks and 94.5% at 12wks

• in complex cases the CAS teams can request assistance from their colleagues in the tertiary level Paediatric Autism Consultancy Team (PAC)team

• CAMHS are involved where there is a co-morbid mental health problem 4.2. Actions to Address Issues:- • a clinical group has come together recently to review the clinical diagnostic pathway from a Paediatric/Speech and Language Therapy, Health Visiting and CAMHS perspectives. The review will also attempt to outline the range of Health Services available and their role and limitations in the post diagnostic period of this lifelong pervasive condition which may require enhanced social and educational support.

5. Autism Diagnosis 5.1. There are currently no waiting times for children in relation to autism diagnosis, who are assessed as part of the universal pathway. As there is ongoing child assessment, the diagnosis is progressed over time and is not a stop/start process. Where autism spectrum disorder is suspected, the paediatrician and speech and language therapist work together to come to a diagnostic decision. If a child has a mental health issue as well, Child and Adolescent Mental Health Services would make the diagnosis. 5.2. The current waiting time for adults (those over 16 who have left school and are not being seen by CAMHS) for a diagnosis of autism is currently 16-20 weeks. 5.3. With regard to a ‘statutory services assessment’ from a qualified Social Worker, this implies that ‘as an integral part of this process’ parent carers of autistic children would waive their right to request assistance under Sections 22, 23 and 24 of The Children (Scotland) Act 1995, and have such an assessment imposed upon them after an autism diagnosis was made. Current legislation imposes a statutory duty upon the local authority to assess the needs of all children in need/affected by a disability under Sections 22 and 23 of The Children Scotland Act 1995 if requested to do so. 5.4. Bullet point 2 – South Lanarkshire Council has invested heavily in creating a training model for both teachers and school support assistants that provides them with the skills and experiences to best support children with autism in mainstream schools and ASN provisions. These training opportunities have been recognised by organisations in the field as being very effective in skilling up staff. It would be our intention to continue to develop such training to meet the needs of a changing pupil population. This will always be part of how we respond to our duty to meet the needs of children in our establishments, however, it will not be based on creating a mandatory structure of training as such a system could have unintended consequences in terms of recruitment and retention of staff. 5.5. Bullet point 3 – current legislation indicates that Corporate Parenting duties apply to young care experienced/looked after people up until they reach the age of 26. The implication that this should be generally extended to all autistic people would, in the first instance be something upon which the autism community itself should be consulted. Given the fact that the Micro Segmentation Report published in March 2018 by the Scottish Government concluded that over two thirds of Scotland’s autistic population did not have a co-morbid learning disability, the implication that being diagnosed with autism spectrum condition would automatically mean a person would be ‘corporately parented’ up until the age of 25 is something which many autistic people would find unnecessary and possibly intrusive. The current independent review of The Mental Health Legislation is evidence that autistic people and their parent carers object to generalisations relating to autism itself being broadly labelled as ‘mentally disordered’. A similar approach via Corporate Parenting could result in similar sentiments. However, where autistic people experience co-morbid learning disabilities or mental health problems, extended rights could prove to be supportive. 5.6. Bullet point 4 – the current 10 year long Scottish Strategy for Autism, implemented in 2011 will expire in 2021. The reasons why specific autism legislation was discounted by the Scottish Government in 2011 centred on the conclusion that the specific rights of autistic people were already adequately encompassed within existing Equalities and Mental Health legislation. However, the specific rights of autistic people to autism informed supports and services has resulted in South Lanarkshire drafting a Local Autism Action Plan 2018-2023 which will address 15 key priorities identified by the South Lanarkshire autism community itself, and obtained after extensive consultations held between 2014- 2017. The fact that specific autism legislation has been enacted in England since 2009 and Northern Ireland since 2011 would support the view that the UK autistic population does require specific services and supports. The remaining two years left of the Scottish Strategy for Autism would give ample time to consult on the question of legislation thereafter. 6. Proposed Next Steps 6.1. To set up five specific work streams to address and progress the key priorities and main themes which emerged following the South Lanarkshire autism consultation process, and subsequent launch of The Local Autism Action Plan 2018- 2023. South Lanarkshire has also invested in the ARCH (Autism Resources Coordination Hub) a bespoke autism community hub, which will continue to be the focus of service development and strategic direction. 7. Employee Implications 7.1. Staffing within ARCH has been agreed and is ongoing. 8. Financial Implications 8.1. The funding of ARCH was agreed by the Social Work Committee in June 2018, and represents funding for a five year period from 2018-2023.

PE1704/M National Autistic Society submission of 31 October 2018 About Autism Autism is a lifelong developmental disability that affects how a person communicates with, and relates to, other people. It also affects how they make sense of the world around them. It is a spectrum condition, which means that, while there are certain difficulties that everyone with autism shares, the condition affects them in different ways. Some autistic people are able to live relatively independent lives, while others will need a lifetime of specialist support. It affects more than one in 100 people in the UK1. About The National Autistic Society Scotland The National Autistic Society Scotland is a leading charity for autistic people in Scotland and their families. There are around 58,000 autistic people in Scotland, both children and adults, plus their more than 174,000 family members and carers. We provide local specialist help, information and care across Scotland to children, adults and families affected by autism. We offer a wide range of personalised quality support at home and in the community, both in groups and one-to-one. Our branches in Scotland offer families and autistic people help and mutual support, and our employment team support autistic people in work and their employers. Introduction We are pleased to have been invited by the Public Petitions Committee to give evidence in relation to the action being called for in petition PE1704. This petition highlights some important issues that have a real impact on the lives autistic people and their families, and we congratulate the petitioner on bringing these to the attention of the committee. These area issues which the National Autistic Society Scotland have been campaigning on for many years, and we agree that action must be taken now across many policy areas if we are going to see meaningful and lasting positive improvements in the lives of autistic people and their families in Scotland. In our evidence below, we address each of the targets and priorities suggested by the petitioner. 1. That every person in Scotland going through an autism diagnostic procedure will be assessed within a calendar year and receive a statutory services assessment from a qualified social worker as an integral part of this process, within twelve months from the date of their initial referral.

Our Response Diagnosis Waiting Times

1 Baird, G. et al. (2006) Prevalence of disorders of the autism spectrum in a population cohort of children in South Thames: the Special Needs and Autism Project (SNAP). The Lancet, 368 (9531), pp. 210-215, and Brugha, T. et al (2009) Autism spectrum disorders in adults living in households throughout England: report from the Adult Psychiatric Morbidity Survey, 2007. Leeds: NHS Information Centre for Health and Social Care. Available to download at http://www.hscic.gov.uk/catalogue/PUB01131 Getting a diagnosis is a critical milestone for autistic people and is key to them living healthier lives. It can offer a gateway to accessing the right support as well as providing an explanation for years of feeling ‘different’ or helping a parent to understand their child better. Delays in diagnosis mean delays in getting the right support and all the associated problems that entails: 60% of local authorities agree that having a diagnosis means someone is more likely to get support2 and for those autistic adults who don’t receive support, 73% told us they would feel less isolated if they were able to access it3. Research from Goldsmith’s University suggests that, on average, children wait 3.6 years to receive an autism diagnosis after first seeking professional help, while adults wait an average of two years.4 In addition, our 2013 Count Us In; It Pays to Listen report found that: • 42% of respondents said the process was too stressful • 27% of respondents said they had been misdiagnosed • 6% of respondents had paid to access diagnosis.

Currently in Scotland there are no autism-specific diagnosis waiting times targets. The Scottish Intercollegiate Guidelines Network (SIGN), the body which develops clinical practice guidelines for the NHS in Scotland, do not include a recommendation on waiting time targets for diagnosis, as waiting times policies are set by the Scottish Government. The National Institute for Health and Care Excellence (NICE) performs a similar function to SIGN for England (and to some extent for Wales and Northern Ireland), and makes clear that no patient should have to wait longer than three months between a referral for diagnosis and first appointment. In 2011, the Scottish Strategy for Autism recommended that an assessment of national waiting lists be undertaken to clarify the extent of delays. The Autism Achieve Alliance (AAA) published their findings in 2014, using a recommended maximum waiting time of 119 days from having an initial referral to sharing a diagnosis as a target to measure performance against (from recommendations issued in the National Autism Plan for Children (2003)). The AAA report in Scotland identified that 59% of adults and 74% of children took longer than 119 days to receive a diagnosis and that the average diagnosis waiting time for children was 331 days, with the longest individual case in their study taking over five years. This underlines a wide variation diagnosis waiting times across the country. In July 2016, we welcomed the publication of the new SIGN guideline on ‘Assessment, diagnosis and interventions for autism spectrum disorders’. We have long been campaigning for better recognition of autism among adults and for many years have called for action to improve the diagnostic process for autistic adults. We therefore particularly welcomed the new guidelines covering all ages and replace previous guidelines that only covered children and young people.

2 Daly, J. (2008). I Exist: the message from adults with autism in Scotland. London: The National Autistic Society 3 NAS Scotland (2013), Count Us In. 4 http://www.autismdiagnosis.info However, there is still a lot of work to do if this issue is going to be addressed. In September 2017, the UK Government announced that autism diagnosis waiting times in England would be recorded from April 2018. While collecting this information is just one element of what is needed for us to have a better understanding of the autistic population, it’s a significant and positive step. We also believe that the Scottish Government should also commit to recording, publishing and monitoring autism diagnosis waiting times in every area. Our Count Us In report made a key recommendation in 2013 that there should be an NHS HEAT target for post-diagnostic support, which hasn’t been met. In light of this, we recommended that in the final phase of the Scottish Strategy for Autism, which was refreshed in March 2018, the Scottish Government should develop a Local Delivery Plan (these replaced the system of HEAT targets) standard for autism to join the many others that are currently in place, such as dementia post-diagnostic support and the treatment time guarantee. This would require local authorities and health boards to devise a local plan which would include how they would develop and maintain a diagnostic pathway. We believe it should contain a target that no patient should have to wait longer than three months between a referral for diagnosis and first appointment. Statutory services assessments We know that getting the right support at the right time can have a strong, positive effect on a person’s quality of life. However, we also know autistic people and their families and carers often struggle to access the help and support that they need. Children with disabilities have rights to an assessment under Section 23 of the Children (Scotland) Act 1995. This assessment allows social work departments to collect information about children and families and identify any needs for support that they may have. The local authority then has a duty to provide any services necessary to meet their needs. Indeed, children may be entitled to an assessment of their needs even if they do not yet have a formal diagnosis of autism. This is because Section 23 of the Children (Scotland) Act 1995 applies to all ‘children in need’. Adults in Scotland are entitled to an assessment of needs under Section 55 of the NHS and Community Care Act 1990 and section 12a of the Social Work (Scotland) Act 1968. However, our Count Us In report found that while 66% of autistic adults felt that they did not have enough support, 69% of autistic adults haven’t had an assessment of their needs since turning 18. We believe that autistic children, young people and adults should get an assessment as quickly as possible after this is requested, and that this assessment must be carried out by someone with sufficient training in autism. Our Count Us In report found that 50% of the autistic people we spoke to said that professional understanding of autism is poor or very poor. Ensuring that assessors have a good understanding of autism and are appropriately trained to develop person-centred plans for autistic people will help address some of the issues autistic people currently face when going through this process.

Supporting autistic children and young people in education Getting the right education and support is a top concern for many of our members and other people who contact us. But we know that parents often have to fight to get the support their children need. If we are to ensure that autistic people are able to live their lives as active citizens who are fully integrated and able to participate in their communities and society, then this needs to be addressed. Having teachers who are properly trained and have the necessary tools to support the inclusion of autistic children and young people in mainstream education services is a vital component of this. According to the most recent figures, there are 14,973 autistic pupils in schools run by local authorities in Scotland . The vast majority of these pupils are in mainstream schools and so every teacher will have autistic pupils in their classes throughout their careers. It is because of this prevalence that we believe that autism should be included as a specific topic in Initial Teacher Education in Scotland. Autistic children and young people (and their parents) are clear about the need for teachers to have a better understanding of autism. In a survey we carried out in 2015 on what our charity’s priorities should be, 70% of Scottish respondents identified teacher training as the most important change that needed to happen in our education system. In addition, the Additional Support Needs Tribunals for Scotland’s 12th Annual Report shows that cases involving autistic children and young people account for 52% of the references they received between April 2016 and March 2017. We often hear from the parents of autistic children and young people that they often have to go down this route of dispute resolution because a child’s needs are not understood by education professionals and therefore, not being met appropriately. In September 2018, we published our Not Included, Not Engaged, Not Involved joint report in partnership with Children in Scotland and Scottish Autism which looked in to the experiences of autistic children who are missing school. Nearly three quarters (72%) of the parents of autistic children who responded to our survey felt that staff having a better understanding of how their child’s autism affects them, including their communication needs, would have made a difference to their child. This report contained a number of calls to action, including improving the availability of specialist teachers. This recommendation called on the Scottish Government to commission a short-term working group to develop a plan for the additional support for learning workforce published within one year of the publication of the report. We think that the plan should include a commitment to increase trained additional support for learning teachers to 2010 levels (as a minimum) within two years. We also recommended that programmes of Initial Teacher Education and Continual Professional Development should be enhanced to improve understanding of autism. As part of this recommendation, we called on: • The General Teaching Council for Scotland to ensure all trainee teachers receive training on additional support for learning which includes a compulsory element on supporting autistic children. • The Scottish Government to implement a model of continuous professional development in autism understanding for education staff, similar to the Autism Education Trust which is funded in England by the Department for Education and has trained over 150,000 staff. • Local authorities to actively promote the Autism Toolbox to education professionals in their schools, and the Scottish Government should explore how the Toolbox can be developed further in order for it to fully support the inclusion of autistic children and young people in mainstream education. 3. That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

In Scotland, Coordinated Support Plans (CSPs) outline the support needed from social work for children and young people to meet their educational objectives. They may also have a separate Child’s Plan to detail their non-education care needs (the CSP may be part of this but not all children with a Child’s Plan will have a CSP). Whilst a young person is in school education, their CSP should continue if needed (could be up to age 19). There are no further duties relating to education once a young person has left school. In England, Education and Health Care Plans (EHCPs) are statutory plans for children and young people requiring additional support from both education and social work services. They last until the age of 25 while they remain in education and further education. We believe that EHCPs have proven valuable in helping to ensure that the transition from one education setting to another are as smooth as possible for autistic young people, due to the fact that they can continue up until the age of 25. We know that transition can cause anxiety for autistic people, and therefore believe that anything that improves this process should be welcomed. We therefore support a move to replicate this in Scotland. 4. That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

In March 2018, the Scottish Government launched its refreshed Scottish Strategy for Autism for 2018-2021. This document set out the Government’s priorities for action through to 2021, identifying what it will do to improve services and support for autistic people in Scotland. It is the final refresh of the Strategy before it comes to an end in 2021. We have campaigned for many years to improve support and services for autistic people. Our campaigning led, in 2011, to the publication of the ten year Scottish Strategy for Autism, which was then updated in 2015. During the life of the Strategy, our charity has been a key member of the Governance Group that oversees it. In November 2017, we responded to the Scottish Government’s consultation on what its priorities should be. In this response, we stated our belief that the Strategy has not yet had the impact that was intended or expected. We also believe that that too few of the initiatives that have been brought about by the Strategy have had real lasting change. With three years left until the end of the Strategy, significant measurable change is needed and data needs to be gathered and shared on the impact and outcomes of the initiatives it has brought about. We believe it’s vital that the Scottish Government carries out a thorough analysis of the Strategy and its impact, and that this evaluation is used to inform what comes next. We will be undertaking our own work in this area. We have previously campaigned for an Autism Act in Scotland, and recognise the positive change legislation has brought about in England, and will come to a view as to whether or not legislation is necessary once the all the available evidence is gathered.

PE1704/N Scottish Borders Council submission of 1 November 2018

This is an aspirational target but would certainly support children and families who rely on a diagnosis to access funding and other resources.

Currently where children and young people have an assessed need for an additional needs assistant to support them with their learning this is provided and appropriate training is given. If this were to change to a requirement and mandatory registration there may be issues with selection and recruitment of staff as well as additional resourcing to provide appropriate qualifications.

That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

Bringing this requirement under a statutory right will put significant pressure on current resources and will undoubtedly require a level of additionality.

• That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

Additional resources will be required if the Act places duties on Local Authorities to deliver. Children and young people with autism have a wide range of needs and whilst some require specialist services as a constant others only require intermittent access. An Act would have to give careful consideration of the spectrum of need and support required.

If specific rights and services were resource driven then this would require additional funding in schools to allow local authorities to offer enhanced support to children affected by autism.

PE1704/O EIS submission of 2 November 2018 Summary The EIS welcomes the opportunity to comment on petition PE1704, which is calling on the Scottish Parliament to urge the Scottish Government to ensure that an agenda of real and meaningful change for autistic people is pursued by ensuring various changes by 2021. We are commenting from the perspective of teachers (over 80% of teachers in Scotland are members of the EIS), and therefore have most interest in the recommendation that “children with autism in mainstream schools will have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of a mandatory registration process for ASL professionals.” Our remarks about this aspect of the petition are on page 2. We have no specific remarks about the recommendation that every person in Scotland going through an autism diagnostic procedure should be assessed within a calendar year, although clearly early diagnosis is helpful, and the current lengthy delays between referral, diagnosis and receipt of post-diagnostic support are unhelpful to the child or young person, their family, and those in their learning establishment. In term of whether young adults with autism should have a statutory right to specialist support from their local authority up to the age of 25, we have no specific policy on this. However, we do recognise that it is important for young adults to be supported at transition stages in their lives, for example, as they move to further or higher education. In terms of whether an Autism Act is needed to enshrine specific rights and services for autistic people in our legal system, we have no position in formal policy on this, but would tend to take the view that there is currently significant legislative and policy architecture to protect rights, and that what is needed is in fact improved implementation and appropriate resourcing of existing provisions. The existing Education (Additional Support for Learning) (Scotland) Act 2004 (as amended), GIRFEC, the Equality Act 2010 and the UNCRC all provide a strong foundation for meeting the needs of people with autism during their education. Regrettably, however, sustained under-resourcing of the education system, and specifically of additional support for learning provision, has meant the promise of policy not being fully delivered. Meeting the needs of children with autism in mainstream schools The petitioners recommend that children with autism in mainstream schools should have their assessed needs for classroom support met by an ASL assistant with a recognised autism qualification as part of a mandatory registration process for ASL professionals.

There are several aspects to this recommendation: - children with autism being in mainstream schools - such children having their ‘assessed needs’ for classroom support met - those needs being met by an ASL assistant - that assistant having a recognised autism qualification - ASL professionals being part of a mandatory registration process. We have comments to make on each of these aspects, as follows. Mainstreaming Whilst we support inclusive education in principle, and believe that children, schools and learning communities derive many benefits individually and collectively from having diverse learning populations, the current approach to mainstreaming is not working. Our members have described it as ‘mainstreaming on the cheap’ and ‘inclusion without resources’. This is a fundamental issue which must be addressed. An added challenge is that there is a range of need across the autism spectrum; the support/environment one pupil requires can be quite different to the needs of another with an ASD diagnosis. It is also important to recognise that for some children, even with good resourcing, mainstream schools are not the most suitable learning environment. Schools can be noisy, brightly-lit environments, which can be overwhelming for children with sensory issues, and especially in a context of growing school rolls/declining teacher numbers, which leads to large class sizes. Some children with autism simply cannot cope in these environments, and their behaviour is so challenging as to be dangerous to them, their peers and to staff. Our members working with children with additional support needs, including autism, report that their daily work can be very rewarding, but it is also difficult and stressful, and they can experience serious violence and disruption from pupils, including being bitten, spat on, scratched, slapped and grabbed. Many colleagues report behaviour management concerns as their biggest difficulty, and don’t feel safe at work. This is especially true in mainstream schools. It is vital, therefore, that special schools, with appropriate teacher-pupil ratios, continue to exist and to be valued. The presumption of mainstreaming does not preclude some children with autism being educated in special schools where that would better meet their needs and be less disruptive to other learners. Children having their needs for classroom support assessed We are aware of serious issues with the assessment process across many local authorities at present. Our members report that the children with the most serious and complex learning difficulties are getting priority, and others who can by and large manage in school are not being assessed quickly enough or with enough external inputs. There are far too few Educational Psychologists, which hinders the assessment of needs. The number of EPs practising in Scotland fell by a tenth in the three years from 2012 to 2015. There were 370 trained EPs practising in Scottish local authorities in 2015 - 10% fewer than the 411 practising in 2012. We would link this to the 2012 Scottish Government decision to remove bursary funding from the course. Despite a recent announcement of new investment, the only university in Scotland due to offer educational psychology training next year has said it will not be running the course, meaning that there may be no new entrants to the profession in 2021. Children having their needs met by an ASL assistant This ask, while worthy in its intentions, overlooks the role of classroom and ASL teachers, who, when well supported in an environment that is properly resourced, play a vitally important role in meeting the needs of children with autism. Schools should have enough teachers to enable them to meet the needs of all children; provision should also be augmented with assistants who are appropriately skilled in addressing the diversity of additional support needs, including autistic children’s needs. Learning provision needs to be a partnership between teachers and specialist assistants, but with teachers, as the most highly qualified professionals in the classroom, leading young people’s learning. Our members regret the continuing depletion of ASL assistants across the education service. Some schools no longer have any one-to-one support for pupils with additional support needs, or have no specialist services, and members report that this has presented significant challenge. We believe that an issue which requires further attention is the undervaluing of the roles of both ASL Teachers and ASL Assistants, which in part we would suggest is linked to a societal undervaluing of work which is predominantly carried out by women, often (wrongly) perceived as something that ‘anyone could do’, where the skills involved are not fully understood or respected. We have anecdotal evidence that ASN teaching staff in schools are often used as supply, especially as the cover crisis worsens, and their specialist skills and expertise are therefore not being deployed as they ought to be. ASL assistants having a recognised autism qualification It is important for all professionals working with children and young people to have appropriate, recognised qualifications. Regrettably, access to specialist qualifications on ASL has been eroded over the past two decades. At one time, teachers would have had access to funded post-graduate learning, with cover provided by the employer and time provided to enable the course of study to be completed successfully. Such opportunities rarely exist now. Teachers who engage in professional learning about ASL and autism matters often do so in their own time (on top of a huge workload) and at their own expense. Schools lack funding to cover the cost of supply staff to enable release from the classroom of teachers wishing to undertake relevant professional learning and where funding may be available for cover, the requisite teachers are not. Beyond recognised qualifications, we are aware that there are some good resources which can bolster teachers’ knowledge of autism, e.g. the autism toolbox, although this might now need a refresh. However, teachers lack the time to take part in all the self-directed personal study that they wish to. They also lack the time to reflect on how to change their practice; and to then make the differentiated curricular resources that are needed to meet the needs of autistic children, especially as autism can present so differently in every child on the spectrum and thus there is not an appropriate ‘one size fits all’ approach. Personalisation of learning resources requires time that is scarcely available in the current teaching climate. Concerted efforts must be made to address teacher numbers and workload. ASL professionals being part of a mandatory registration process. We would note that all teachers are registered in Scotland by the General Teaching Council for Scotland, which helps to uphold the high quality of the teaching profession. We are not opposed to the registration of other professionals in a suitable, separate body. We would reject any attempts to create an overarching ‘education workforce council’ or similar, as was mooted by the Scottish Government as part of its education reform agenda. Strategies and training already in place We note that the Committee is interested to understand what strategies and training are currently in place to enable our members to support young people with autism. We would say these are, in summary, professional learning offered by the EIS; information disseminated to/by our ASN Network; and EIS support for the Professional Update process, including member guidance, which can be a vehicle for enhanced learning on autism. Our members report a dearth of support and professional learning opportunities from their employers, and difficulties accessing the courses that do exist, due to the ongoing teacher shortage which makes cover difficult to secure. Cuts to CPD budgets have reduced the professional learning offer from employers and members’ access to courses supplied by external providers, for which there is a fee. Wider issues We wish to raise four wider issues, namely budget cuts and rising need; class sizes; attainment narratives; and intersectionality. A climate of cuts and rising need Cuts to school budgets, and to teacher numbers, which despite protection for the past two years have declined quite significantly overall since 2007, are very problematic. So too is the decline in support staff numbers. For example, Behaviour Support Staff in primary have reduced by 72% since 2008, (from 32 posts to 9), and the number of ASN assistants in 2016, while similar now to the 2010 figure, has declined by 730 (FTE) since 2013, when it peaked. The number of teaching staff in primary schools with a general ASN role has declined from 146 in 2008 to 68 in 2017 – a reduction of 53%. The number of teaching staff in secondary schools with a Behaviour Support role has declined from 127 in 2008 to 71 in 2017 – a reduction of 79%. The number of teachers with additional support for learning as their main subject fell by 166 between 2007 and 2016, a fall of 5.4%. The reduction since 2009, when the number of such teachers peaked, is starker – a fall of 14.8%. ASN teacher numbers also fell in 16 out of Scotland's 32 local authorities over the period 2007 to 2016. In secondary schools, there are now 374 FTE fewer support posts than in 2011 - a reduction of 20%. (Sources: Teacher Census and Parliamentary Question S5W- 05579i). Scottish Government data confirms that the number of pupils with ASN has vastly increased. In 2016, 170,329 pupils (24.9% of all pupils) were identified as having ASN; in 2011, the number was 98,523. The increase over those five years was 73%. It is hard to see how it is possible to ‘Get it Right for Every Child’, including children with autism, when so many now have identified needs, and schools are operating within austerity budgets. Class sizes EIS policy is that no class should exceed 20 pupils, while various circumstances will justify smaller groups (e.g. composite classes, classes featuring pupils with ASN). We regret the Scottish Government’s failure thus far to meet its target of reducing class sizes; in fact, they continue to edge upwards. Evidence clearly indicates that smaller classes have a significant impact on the quality of the learning experience, the ability of teachers to respond to pupils’ needs, and on achievement and attainment. Pupils with autism would benefit from smaller groupings, as much as and perhaps more than all learners would. Quite simply, a smaller number of people in the room would reduce the amount of noise, movement and unpredictable action that many autistic children find distressing, while enabling greater one to one support for individual children, including those with autism. Attainment narratives We wish to note that the current debate about attainment in Scottish schools, which has had a focus on achievement of CfE levels, SQA exam results and standardised assessment data, has not visibly taken into account other types of achievement. This narrowing of the discourse around what achievement means is concerning for EIS members. Some children with autism will have very different achievements than those captured by CfE levels and SQA exam data, and that is hugely important and valid. What matters most is children meeting their potential, and the four capacities of the Curriculum for Excellence. Of concern to EIS members, also, is the impact of SQA decision-making on students with additional support needs, including autism, and the workload of their teachers. The introduction of exams in some subjects at National 5 and Higher, and the lengthening of exams in most subjects, poses particular challenges for autistic young people who find unfamiliar situations, especially those that are strictly governed by rules, a real difficulty. For many autistic young people, sustaining concentration for such prolonged periods of time is an unfair demand. While there is the option to apply for Alternative Assessment Arrangements to support such students, the SQA demands that applications, supported by evidence, which can be very time- consuming to gather, are made on an annual basis, in every subject that the student is being presented for. The EIS has urged the SQA to adopt a more streamlined, common-sense approach to the application process but this, so far, has fallen on deaf ears. Intersectionality We note that not all children with autism are the same - far from it. The so-called ‘triad of impairments’ can affect all children on the spectrum differently. Like all children, they each have various qualities and characteristics, and some may face extra barriers to learning such as having English as an additional language. It will be important that any strategy which is developed to meet the needs of learners with autism strongly reflects that one size does not fit all; and is realistic about the time required for teachers to learn more about how being on the autism spectrum can manifest in many different ways, particularly when combined with other characteristics.

i http://www.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S 5W-05579 PE1704/P East Renfrewshire Health and Social Care Partnership submission of 2 November 2018

We agree that diagnostic assessments should be completed within a calendar year.

We disagree that all individuals being assessed for autism should be assessed by a qualified social worker.

Children may benefit from a wellbeing assessment consistent with the national practice model within a child’s plan with resources put in place to support wellbeing and curriculum access, however, there would be challenges meeting and maintaining this target. These children do not always necessarily require social work intervention.

Many autistic adults are able to manage their lives without the need for statutory services. SIGN 145 Assessment, diagnosis and interventions for autism spectrum disorders states - A national clinical guideline June 2016 makes provision for assessment services to “involve relevant multiagency colleagues (education, social work, voluntary sector, careers advisors, employers, as appropriate) on a needs led basis.

We do not agree that this would not always be appropriate in terms of meeting assessed needs of the child or young person and in some cases may have a negative impact on development

• That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

We agree with this for young adults with autism under the Children’s and Young Person’s Act 2104 where a corporate parenting duty exists. For those supported under S23 of the Children (S) Act 1995 a managed transition should be carried out between the ages of 16 and 18.

• That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system. We do not agree that there is a need for a specific Autism Act. A focus on specific diagnosed conditions always leaves certain groups behind in provision made. There is a need for specific consideration of the needs and rights of all individuals with communication and support needs. PE1704/Q Aberdeen City Council submission of 12 November 2018

1. That every person in Scotland going through an autism diagnostic procedure will be assessed within a calendar year

We feel this is an appropriate priority.

Receive a statutory services assessment from a qualified social worker as an integral part of this process, within twelve months from the date of their initial referral.

Not every family would necessarily want or require the involvement of social work services. Additionally, it would not be essential in all cases for a qualified social worker to undertake an assessment - a care coordinator/family support officer or equivalent post may provide a more workable solution.

We feel that there is already recognised legislation in place to ensure that children’s needs are being assessed with regards to support within the classroom. There are many very experienced and able support staff working in classrooms across Scotland who already have the knowledge, skills and experience required to support children with an ASC. Making it mandatory to have a recognised qualification and registration process could potentially restrict the number of individuals being prepared and willing to embark on a career supporting children with additional support needs. There are already opportunities in place for those wanting to progress their formal learning within ASC’s. As a Local Authority we have a service in place to support children, families and staff offering ongoing training and advice, guidance and resources and this approach ensures that bespoke training, designed to reflect the needs of individual children and young people, is provided rather than generic training.

3. That young adults with autism will have a statutory right to specialist support from their local authority up to the age of 25.

We feel this is an appropriate aspiration for all children and young people with an additional support need not just those with an ASC, the difficulty would be defining the support to be provided as all needs are highly individual.

It will be important to clarify that the qualifying criteria – autistic diagnosis and that the extension of service provision is adequately funded.

4. That an Autism Act will be in place within the next 5 years to enshrine specific rights and services for autistic people in our legal system.

We feel that it would be appropriate that any child or young person with an additional support need gets the protection and support they need through the legal system.

The timescale noted would appears appropriate and would allow time for services to plan for the proposed changes.