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Scottish Statutory Instruments
2011 No. 104
Education
The Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011
Made
10th February 2011
Laid before the Scottish Parliament
15th February 2011
Coming into force in accordance with rule 1
The Scottish Ministers make the following Rules in exercise of the powers conferred by sections 17(4) and 34(2) of, and paragraph 11 of schedule 1 to, the Education (Additional Support for Learning) (Scotland) Act 2004(1) and paragraph 10 of Schedule 17 to the Equality Act 2010(2) and all other powers enabling them to do so.
PART 1GENERAL
Citation and commencement
1.-(1) These Rules may be cited as the Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011 and, subject to paragraph (2), come into force on 18th March 2011.
(2) Rule 5(5) comes into force on 6th April 2011.
Interpretation
2.-(1) In these Rules, unless the context otherwise requires-
"the 2004 Act" means the Education (Additional Support for Learning) (Scotland) Act 2004(5);
"the 2010 Act" means the Equality Act 2010;
"case statement period" means the period referred to in rule 8(2);
"claim" means a claim under paragraph 8 of Schedule 17 to the 2010 Act and "claimant" shall be construed accordingly;
"convener" means the President or individual selected by the President from the panel ("the panel of conveners") appointed by the Scottish Ministers under paragraph 3(1)(a) of schedule 1 to the 2004 Act to act as the convener of a Tribunal;
"electronic communication" has the meaning given to it by section 15(1) of the Electronic Communications Act 2000(6) and "electronic signature" has the same meaning as in section 7 of that Act;
"hearing" means the proceedings of a Tribunal for the purpose of enabling the Tribunal to take a decision on a claim or on any question or matter at which the parties are entitled to attend and be heard;
"members" means the individuals selected by the President from the panel ("the panel of members") appointed by the Scottish Ministers under paragraph 3(1)(b) of Schedule 1 to the 2004 Act to act as a member of a Tribunal;
"overriding objective" means the objective referred to in rule 3;
"party" means either the claimant or responsible body in respect of any claim made to a Tribunal;
"Register" means the Register of Claims to the Tribunals kept in pursuance of rule 45;
"response" means a written response submitted by a responsible body under rule 10;
"responsible body" has the same meaning as in section 85(9) of the 2010 Act;
"Secretary" means the member of the Tribunal staff for the time being appointed to act as secretary to the Tribunals;
"working day" means any day which is not-
a Saturday;
a Sunday;
a day from 27th December to 31st December inclusive;
a day in July; or
a day specified as a bank holiday in Scotland in or by virtue of the Banking and Financial Dealings Act 1971(7); and
"written evidence" includes evidence recorded in any way.
(2) In these Rules-
(a)a reference to a rule is a reference to a rule in these Rules, and in any rule a reference to a paragraph or sub-‘paragraph is, unless the context requires otherwise, a reference to a paragraph or sub-‘paragraph in the rule;
(b)where the time prescribed by these Rules for doing any act expires on a day which is not a working day, that act is done in time if it is done on the next working day; and
(c)references to the doing of anything in writing include references to the doing of that thing by means of a document-
(i)transmitted by electronic means;
(ii)received in legible form; and
(iii)capable of being used for subsequent reference.
The overriding objective
3.-(1) These Rules are a procedural code with the overriding objective of enabling a Tribunal with the assistance of the parties to deal with claims fairly and justly.
(2) Dealing with claims fairly and justly includes-
(a)dealing with the claim in ways which are proportionate to the complexity of the issues and to the resources of the parties;
(b)seeking informality and flexibility in the proceedings under these Rules;
(c)ensuring, so far as practicable, that the parties are on an equal footing procedurally and are able to participate fully in the proceedings, including assisting any party in the presentation of their case without advocating the course they should take;
(d)using a Tribunal's special expertise effectively; and
(e)avoiding delay, so far as compatible with the proper consideration of the issues.
Application by Tribunal of the overriding objective
4.-(1) A Tribunal must seek to give effect to the overriding objective when it-
(a)exercises any power under these Rules; or
(b)interprets any rule.
(2) In particular a Tribunal must manage claims actively in accordance with the overriding objective.
PART 2START OF PROCEEDINGS
Claim
5.-(1) A claim to a Tribunal shall be made by notice in writing and shall be signed by the claimant or, at the discretion of the Secretary, a claim transmitted by electronic means may be accepted without the claimant's signature.
(2) The claim shall state-
(a)the name, address, telephone number, date of birth and nature of the disability of the person to whom the claim relates;
(b)the name, address and telephone number of the claimant, if the claimant is not the person to whom the claim relates;
(c)the address to which correspondence should be sent to the claimant, if different;
(d)the name, address and telephone number of the responsible body;
(e)the name, address and profession of any representative appointed by the claimant, and, where available, the representative's telephone number, fax number and electronic address;
(f)the main facts on which the claimant intends to rely; and
(g)details of the alleged contravention of Chapter 1 of Part 6 of the 2010 Act.
(3) The claimant must send a copy of the claim to the Equality and Human Rights Commission(8).
(4) A Tribunal shall not consider a claim unless the claim has been received by the Secretary before the end of the period of six months beginning when the act complained of was done.
(5) If, in relation to proceedings or prospective proceedings under section 27 of the Equality Act 2006(9), the dispute is referred for conciliation in pursuance of arrangements under that section before the end of the period specified in paragraph (4), that period is extended by 3 months.
(6) A Tribunal may consider any claim which is out of time under paragraphs (4) or (5) if, in all the circumstances of the case, it considers that it is just and equitable to do so.
Action upon receiving a claim
6. On receiving a claim the Secretary shall-
(a)enter the details of such matters specified in rule 5(2) in the Register and such other information as the President may from time to time direct under paragraph 12 of schedule 1 to the 2004 Act;
(b)send a copy of the claim and of any accompanying documents to the responsible body, together with a notice in writing giving the case number of the claim from the Register, and including information, as appropriate to the claim, about the means and time for submission of a response, the consequences of failure to do so, and the right to receive a copy of the decision; and
(c)acknowledge receipt and provide the claimant with a notice in writing giving the case number of the claim, and including information as appropriate to the claim, about the time for the responsible body to submit a response, the right to withdraw the claim, and the right to receive a copy of the decision.
Sufficiency of reasons for claim
7.-(1) If the claim does not state grounds of claim which a convener considers sufficient to enable the responsible body to respond to it, the convener shall direct the claimant to send further and better particulars of the grounds of claim to the Secretary within 10 working days of the receipt of notice of such direction by the claimant in accordance with rule 50.
(2) Rules 15 and 17 shall apply to a direction under paragraph (1).
(3) Further and better particulars of the grounds of claim sent in response to a direction made under paragraph (1) shall, if a convener is satisfied that, together with the claim, such particulars should be sufficient to enable the responsible body to respond to it, be treated as part of the claim.
(4) Where a convener has made a direction under paragraph (1), a copy of that direction shall be sent to the responsible body with confirmation that the case statement period will not commence until the direction has been complied with.
Case statement period and statement of claimant's case
8.-(1) Where rule 7 does not apply or a convener is satisfied under rule 7(3), the Secretary shall send notice in writing to both parties advising them of the dates of the case statement period.
(2) The case statement period shall be the period of 30 working days beginning on the date on which notice under paragraph (1) is taken to have been received in accordance with rule 50.
(3) Before the end of the case statement period, the claimant must submit all written evidence to be relied on and which has not already been submitted and may submit to the Secretary a written statement of the claimant's case, which may include the views of the person to whom the claim relates.
(4) The claimant may amend the claim, submit a supplementary written statement of the claimant's case or amend a supplementary written statement, if permission is given by a convener or a Tribunal at a hearing after having first sought and taken account of the views of the responsible body.
(5) The claimant shall submit to the Secretary a copy of every amendment and supplementary statement for which permission is given.
(6) Subject to paragraphs (7) and (8), on the application of either party or on the convener's own initiative, a convener may make an order shortening or extending the case statement period in any claim.
(7) Before making an order under paragraph (6), the convener shall seek oral or written representations from the parties on the issue of shortening or extending the case statement period.
(8) A convener may only make an order under paragraph (6) if satisfied that-
(a)both parties will have sufficient time to prepare their cases; and
(b)it is fair and just to do so.
(9) In the case of any claim where permission is given by a convener under paragraph (4) the convener giving permission may extend the case statement period if satisfied that it is fair and just to do so.
(10) If, at the time permission is granted under paragraph (4), the responsible body is not entitled to take any part in the proceedings in accordance with rule 10(4), the giving of permission shall restore such entitlement and, if necessary, the hearing shall be rearranged or adjourned, as a convener or a Tribunal at the hearing may consider appropriate, so that the responsible body can be represented.
Distribution of documents by Secretary
9.-(1) Subject to paragraph (2), the Secretary shall-
(a)forthwith send to the responsible body a copy of any amendment to the claim received during the case statement period;
(b)at the end of the case statement period, and in so far as copies have not already been sent, send to each party-
(i)a copy of any amendment to the claim or response;
(ii)any statement of case submitted by the other party; and
(iii)the written evidence of the other party;
(c)forthwith send to the other party copies of any amendments or supplementary statements, written representations, written evidence (other than written evidence of which a copy is received in accordance with rule 8(3) or 10(3)) or other documents received from a party after the end of the case statement period.
(2) If, after the closure of the case statement period, any amendment, supplementary statement, written representation, written evidence or other document or application is delivered to the Secretary, the Secretary shall-
(a)where the parties agree to the late submission, send a copy of it to the other party; or
(b)where the parties do not agree to the late submission, send a copy of it to the other party to enable the parties to make representations on its admission within such time limits as may be determined by a convener or by a Tribunal at a hearing.
(3) Where any individual has been called under rule 25, the Secretary shall send to them a copy of all of the documentation submitted by the claimant under rule 8(3) and (5).
Response
10.-(1) The responsible body shall submit a response to the Secretary within the last ten working days of the case statement period.
(2) The response shall be signed and dated on behalf of the responsible body and shall state-
(a)the name and address of the responsible body;
(b)the address to which correspondence should be sent, if different;
(c)the response to the grounds stated in the claim;
(d)the basis on which the claim is resisted;
(e)which facts as set out in the claim or in any statement of case under rule 8 are admitted and which are disputed;
(f)any further facts on which the responsible body propose to rely; and
(g)the name, address and profession of any representative appointed by the responsible body, and, where available, the representative's telephone number, fax number and electronic address.
(3) The responsible body must submit along with the response all written evidence to be relied on.
(4) A responsible body who does not submit a response shall not be entitled to take any part in the proceedings, except-
(a)to make an application under rule 15 for a direction requiring the claimant to provide further information on the grounds on which the claimant relies and any facts and submissions relevant thereto, to enable the responsible body to respond;
(b)to apply under rule 19 for an extension of the time appointed under this rule for the response; or
(c)in exceptional circumstances at the discretion of a convener or a Tribunal at a hearing.
(5) In exceptional circumstances the responsible body may amend the response if permission is given by a convener or a Tribunal at a hearing.
(6) The responsible body shall submit to the Secretary a copy of every amendment for which permission is given.
Withdrawal of claim
11.-(1) A claimant may withdraw any claim made to a Tribunal-
(a)at any time before the hearing of the claim by sending to the Secretary a notice to that effect signed by the claimant or by the representative of the claimant; or
(b)at the hearing of the claim.
(2) Upon receipt of any such notice, the Secretary shall send a copy to the responsible body.
(3) Upon withdrawal of the claim, a convener or a Tribunal at a hearing shall make an order dismissing the claim.
Withdrawal of opposition
12.-(1) The responsible body may withdraw their opposition to the claim-
(a)at any time before the hearing of the claim by sending to the Secretary a notice to that effect signed on their behalf; or
(b)at the hearing of the claim.
(2) Upon receipt of any such notice, the Secretary shall send a copy to the claimant.
PART 3MANAGEMENT POWERS OF TRIBUNALS
Preliminary matters
13.-(1) A convener or, at the start of a hearing, the Tribunal may, either on the application of a party or on their own initiative, consider and determine any preliminary or incidental issue arising from a claim which must be determined prior to the substantive hearing of the claim, and which cannot be determined by the giving of directions under rule 15.
(2) Before any such issue is determined by a convener or the Tribunal, the convener or the Tribunal may direct that the Secretary gives-
(a)notice to the parties giving them an opportunity to submit representations in writing within a specified period; or
(b)notice requiring the parties to appear before a convener or the Tribunal for a preliminary hearing on that issue.
Suspension of proceedings
14.-(1) A convener or a Tribunal at a hearing may, on the application of either party, or on their own initiative, suspend such proceedings if it would be fair and just to do so.
(2) Any such suspension may be indefinite or for such specified period as the convener or the Tribunal may consider appropriate.
Directions
15.-(1) A convener may, at any time before the hearing, either on the written application of a party or on the convener's own initiative, give such directions to either or both parties as the convener may consider necessary or expedient to further the overriding objective in the consideration of the claim and may in particular-
(a)direct a party to provide any further information or particulars;
(b)direct a party to produce any document which may reasonably be required and which it is in the power of that party to produce;
(c)direct that a party shall supply a list of documents and a list of witnesses whom that party intends to call to give evidence at the hearing, on such date before the hearing as may be specified;
(d)give directions as to the dates by which any documents or other evidence which any party is intending to rely on or produce shall be submitted;
(e)where a party has notified that they do not wish to attend a hearing, give a direction as to the date by which that party shall send any written representations on the case to the Secretary;
(f)give a direction on-
(i)any issues on which evidence is required;
(ii)the nature of the evidence so required;
(iii)the way in which the evidence is to be provided to the Tribunal; and
(iv)the exclusion of any evidence which is irrelevant, unnecessary or improperly obtained.
(2) Where an application is made by a party for a direction under paragraph (1), it shall be made in writing to the Secretary specifying the direction sought and the basis for the application.
(3) On receipt of such an application, the Secretary shall, unless the application is accompanied by the written consent of the other party, send a copy of the application to the other party inviting the party to make written representations on it within 10 working days or such other period as may be specified by a convener.
(4) Where a party objects to the application, a convener shall consider the objection and, if considered necessary for deciding the application, may afford the parties an opportunity to be heard.
(5) The Secretary shall give notice to the parties of any direction to any party required to comply with it and shall-
(a)include a statement of the possible consequences of failure to comply as mentioned in rule 17; and
(b)unless the party to whom the direction is addressed had consented to the application, contain a statement to the effect that that party may apply to a convener under rule 16 to have that direction varied or set aside.
(6) When making a direction under paragraph (1)(b) a convener may-
(a)impose a condition on the supply of a document that the party receiving the document shall treat it as confidential and shall use it only for the purposes of the claim; and
(b)require, before the direction takes effect, a written undertaking to that effect from that party.
Varying or setting aside of directions
16.-(1) Where a party to whom a direction is given under rule 15 was not afforded the opportunity to be heard before the direction was given and did not consent to the relative application, that party may apply at any time before a Tribunal has determined the claim to a convener, by notice to the Secretary, for the direction to be varied or set aside, but a convener shall not vary it or set it aside without first notifying the other party and considering any representations made by that party.
(2) An application under paragraph (1) may be considered by a convener alone or with such other members of a Tribunal as the convener considers appropriate.
Failure to comply with a direction
17.-(1) If any direction given to a party under rule 15 is not complied with by that party within any period specified in the direction, a convener or a Tribunal at a hearing, may-
(a)where the party in default is the claimant, dismiss the claim either in whole or in part;
(b)where the party in default is the responsible body, determine the claim without a hearing; or
(c)where appropriate, direct that a party in default take no further part in the proceedings.
(2) In this rule the expression "party in default" means the party who failed to comply with the direction.
Power to dismiss
18.-(1) Without prejudice to the powers of a Tribunal at a hearing, a convener may, at any time before the hearing of a claim, direct that the Secretary serves notice on the claimant stating that it appears that the claim should be dismissed on one or more of the grounds specified in paragraph (2) or for want of prosecution.
(2) The grounds referred to in paragraph (1) are that the claim-
(a)is made otherwise than in accordance with these Rules;
(b)is not, or is no longer, within the jurisdiction of the Tribunal; or
(c)is frivolous or vexatious.
(3) The notice under paragraph (1) shall invite the claimant within such period as may be specified (being not less than 5 working days) to make representations in writing as to why the claim should not be dismissed and shall explain that the claimant may request a hearing.
(4) After expiry of the period specified in paragraph (3), and subject to paragraph (5), a convener may order that the claim be struck out on one or more of the grounds specified in paragraph (2) or for want of prosecution.
(5) Before making an order under paragraph (4) a convener shall consider any representations under paragraph (3) and may afford the claimant the opportunity of a hearing.
(6) Any decision to dismiss a claim under this rule shall be recorded in summary form in a document signed by the convener and a copy of that document shall be sent by the Secretary to each of the parties, and details of the decision entered in the Register.
Extension of time
19.-(1) Where these Rules or any direction made under them require or authorise a party or other person to do something within a period of time, a convener or a Tribunal at a hearing may, in exceptional circumstances, on the application of that party or other person, or on their own initiative, and even if the period has expired, grant such further period as the convener or Tribunal may consider appropriate.
(2) Where such a further period has been granted, reference in these Rules to the period of time shall be construed as a reference to the period of time as so extended, and, unless the further period is granted by a Tribunal at a hearing at which both parties are either present or represented, the Secretary shall give notice to each of the parties of any such extension.
Consolidation of claims
20.-(1) Where more than one claim relates to the same person, or requires a decision on substantially the same issue, a convener may order that such claims be heard at the same hearing.
(2) A convener may make an order varying or revoking an earlier order made under paragraph (1).
(3) An order under this rule shall only be made if it appears to the convener to be fair and just to do so and, before an order is made, the parties to each claim affected shall have the opportunity to be heard, and to have their views taken into account, either by a convener alone or with such other members of a Tribunal as the convener may consider appropriate.
Consolidation of hearings of claims and references
21.-(1) Where a reference under section 18(1) of the 2004 Act and a claim relate to the same person, and the other party to the reference and the claim is also the same, the person or, where the claim was made by the person's parent, the parent or the other party may apply to the Tribunal for an order that such a claim and reference be heard at the same hearing.
(2) A convener may-
(a)make an order under paragraph (1);
(b)make an order varying or revoking an earlier order made under paragraph (1).
(3) An order under this rule shall only be made if it appears to the convener to be fair and just to do so and, before an order is made, the parties have had the opportunity to be heard, and to have their views taken into account, either by a convener alone or with such other members of a Tribunal as the convener may consider appropriate.
(4) A convener must not make an order under this rule if it would cause a breach of any of these rules or the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006(10).
PART 4EVIDENCE
Recovery of documents
22.-(1) Subject to the provisions of the 2004 Act and to paragraph (2), a Tribunal or a convener may, on the application of any party or on their own initiative, direct the Secretary to send a citation to any person requiring them to produce to the Secretary, by such date as may be specified, any document in their custody, or under their control.
(2) The citation must explain that it is an offence under paragraph 13 of schedule 1 to the 2004 Act to refuse or fail to produce any such document without reasonable excuse or to deliberately alter, conceal or destroy any document which that person is required by the citation to produce, and that a person guilty of such an offence may be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) Where such a citation has been duly served on a person and that person fails to comply within the time specified in the citation, a convener or the Tribunal at a hearing may-
(a)where the person in default is the claimant, dismiss the claim without a hearing or further hearing; or
(b)where the person in default is the responsible body, order that the responsible body take no further part in the proceedings.
(4) For the purposes of paragraph (1) a person is not obliged to produce a document which that person would be entitled to refuse to produce in civil proceedings before the Court of Session.
(5) In the exercise of the power conferred under paragraph (1) regard shall be had to the need to protect any matter that relates to intimate personal or financial circumstances of any person or consists of information communicated or obtained in confidence.
Witnesses and citation of witnesses
23.-(1) Where a party wishes to call witnesses to attend a hearing to give evidence, that party shall, prior to the end of the case statement period, provide to the Secretary a list of the names and addresses of such witnesses.
(2) A party may not call and lead evidence from any witness who is not included on their list of witnesses except with the permission of a convener or a Tribunal at a hearing.
(3) Subject to the provisions of the 2004 Act and to paragraph (5), a Tribunal or a convener may, on the written application of any party made not later than 8 working days before the hearing, or on their own initiative, direct the Secretary to send a citation to any person whose details are included in either party's list of witnesses under paragraph (1) requiring that person to attend any hearing, including any adjourned hearing, of the Tribunal at such time and place as may be specified in the citation, for the purpose of giving evidence.
(4) The citation must explain that it is an offence under paragraph 13 of Schedule 1 to the 2004 Act without reasonable excuse to fail to attend the Tribunal proceedings as required by the citation or to refuse or fail, whilst attending proceedings as so required, to answer any question and that a person guilty of such an offence may be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(5) No individual shall be required so to attend unless-
(a)they have been given at least 5 working days notice of the hearing or, if less than 5 such days, they have informed the Secretary that they accept such notice as they have been given; and
(b)the necessary expenses of their attendance are paid or tendered to them by the party seeking their attendance.
(6) No witness shall be obliged to answer any question that they could not be compelled to answer in any civil proceedings before the Court of Session.
(7) At the hearing of a claim, the parties shall, subject to the provisions of these Rules, be entitled to be present and be heard, to give evidence, to call witnesses, to question witnesses and to address the Tribunal both on the evidence and generally on the subject matter of the claim.
Expert evidence
24.-(1) A Tribunal or a convener may, if any issue arises in relation to a claim on which, in the opinion of the Tribunal or a convener, it would be desirable for the Tribunal to have the assistance of an expert, appoint a person having appropriate qualifications to enquire into and report on any matter.
(2) The Secretary must supply the parties with a copy of any written report received under paragraph (1) in advance of the hearing or resumed hearing.
(3) If the Tribunal or a convener sees fit, it, he or she may direct that the expert shall attend the hearing and give evidence.
Specified individual
25. On the application of either party or on its own initiative the Tribunal or a convener may call any individual having a sufficient interest in the matter before the Tribunal to attend a hearing and give evidence.
PART 5HEARINGS AND DECISIONS
Notice of hearing
26.-(1) The Secretary shall, after consultation with the parties, fix the date, time and place of the hearing and, not less than 10 working days (or such shorter time as the parties may agree) before the date so fixed, send to each party a notice that the hearing is to be at such time and at such place or notify them in such other manner as the Secretary thinks fit.
(2) The Secretary shall include in or with the notice of hearing-
(a)information and guidance as to attendance at the hearing of the parties, their witnesses and any persons whom they may wish to be present at the hearing in support, the lodging of documents, and the right of representation or assistance as provided for in rule 33(4);
(b)a statement explaining the possible consequences of non-attendance by a party, unless that party has stated in writing that they wish to withdraw the claim or withdraw the response, and of the consequences of the failure to name a representative or witness whom the party may wish to attend;
(c)an invitation to notify the Secretary if a party or a witness may require the attendance of an interpreter or other person to give other necessary assistance at the hearing or may require any other particular arrangements to be made; and
(d)a statement explaining the right to make representations in writing provided for under rule 28(6) by-
(i)a claimant who does not attend and is not represented at the hearing; or
(ii)a responsible body if they are not represented at the hearing and if they have submitted a response, unless they have stated in writing that they do not resist the claim or have withdrawn opposition to the claim.
(3) The Secretary may alter the date, time or place of any hearing provided that the parties are given at least 5 working days notice (or such shorter time as the parties may agree) of any altered hearing date, time or place.
(4) An altered hearing date shall not (unless the parties so agree) be earlier than the date previously fixed.
(5) Nothing in this rule shall oblige the Secretary, in relation to the arrangements for any hearing, to consult with or send notice to any party who is not entitled to be present or represented at that hearing.
(6) In this rule, "working day" has the meaning given to it in rule 2 except that it includes any day in July which is not a Saturday, a Sunday or a day specified as a bank holiday in accordance with these Rules.
Power to decide claim without hearing
27.-(1) A convener may, in any of the circumstances referred to in paragraph (2), decide the claim without a hearing.
(2) For the purposes of paragraph (1) the circumstances are-
(a)where no response is submitted to the Secretary within the time appointed by rule 10 or any extension of time allowed under rule 19;
(b)where the responsible body states in writing that they do not resist the claim;
(c)where the responsible body withdraws their opposition to the claim; or
(d)where both parties agree in writing to dispense with a hearing.
(3) In deciding a claim under paragraph (1) a convener shall do so on the basis of the notice of claim, any response, any statement of case, any supplementary written statement of case and any written evidence submitted in accordance with the Rules.
(4) The Secretary shall, after receipt of a claim which is to proceed without a hearing in accordance with this rule, send to the parties-
(a)information and guidance; and
(b)an indication of when the Secretary expects to be able to notify the parties of the decision of the convener.
Attendance at hearings
28.-(1) Subject to the provisions of this rule, any hearing before a Tribunal shall be in private.
(2) A convener or the Tribunal at a hearing may, on the application of the claimant or on their own initiative, make an order that a hearing or part of a hearing be held in public.
(3) An order shall not be made under paragraph (2) in any of the circumstances referred to in paragraph (4).
(4) Those circumstances are that a public hearing-
(a)would prejudice the welfare or interests of the person to whom the claim relates;
(b)would not, in all the circumstances, allow the fair hearing of the claim; or
(c)would not be fair or just.
(5) The Tribunal, with the consent of the parties or their representatives actually present, may permit any other person to attend the hearing of a claim which is held in private.
(6) A claimant or responsible body who does not intend to attend or be represented at the hearing may, not less than 5 working days before the hearing, submit additional written representations in support of their case.
(7) The following persons, as well as the parties and their representatives, shall be entitled to attend the hearing of a claim held in private-
(a)the person to whom the claim relates, where the person is the claimant;
(b)a parent of the person to whom the claim relates where the person is not the claimant;
(c)an individual attending to support a party;
(d)an individual appointed under rule 34(4);
(e)a witness, but only for the purpose of giving evidence;
(f)the President and a member of the panels of conveners or members (when not sitting as a convener or member of the Tribunal);
(g)the Secretary or a prospective Secretary undergoing training;
(h)a member of the Tribunal staff;
(i)a member of the Administrative Justice and Tribunals Council or its Scottish Committee appointed under section 44 of and Schedule 7 to the Tribunals, Courts and Enforcement Act 2007(11);
(j)a person acting on behalf of the President in the training or supervision of the Tribunal staff;
(k)an interpreter;
(l)a person giving necessary assistance to a person entitled to attend the hearing.
(8) Without prejudice to any other powers it may have, a Tribunal may exclude from the hearing, or any part of it-
(a)a person whose conduct has disrupted or is likely, in the opinion of the Tribunal, to disrupt the hearing;
(b)a person whose presence is likely, in the opinion of the Tribunal, to make it difficult for anyone to present evidence or make representations necessary for the proper conduct of the hearing;
(c)a representative who was not notified to the Secretary in the claim, response or in accordance with rule 33;
(d)a witness not included in the list of witnesses submitted by either party in accordance with rule 23(1).
Conduct of the hearing
29.-(1) At the beginning of the hearing the convener shall explain the procedure which the Tribunal proposes to adopt.
(2) At the hearing of a claim, the parties shall, subject to the provisions of these Rules, be entitled to be present and be heard, to give evidence, to call witnesses, to question witnesses and to address the Tribunal both on the evidence and generally on the subject matter of the claim, provided that neither party shall be entitled to call more than five witnesses to give evidence in person in addition to the claimant, unless, in exceptional circumstances, permitted to do so by a convener, or the Tribunal at a hearing.
(3) A Tribunal may permit a parent of a claimant to address it on the subject matter of the claim.
(4) The Tribunal may, if it is satisfied that it is fair and just to do so, permit-
(a)the claimant to rely on grounds not stated in the claim or in any statement of case; or
(b)the responsible body to rely on grounds not specified in the response.
(5) If, at or after the beginning of a hearing, a member of the Tribunal other than the convener is absent, the hearing may, with the consent of the parties, be conducted by the convener and the remaining member and in that event the Tribunal shall be deemed to be properly constituted, and the decision of the Tribunal shall be taken by the convener and that member.
(6) In the absence of the consent referred to in paragraph (5) the hearing shall be postponed.
(7) Except in so far as expressly permitted by these Rules to give evidence or to address the Tribunal none of the persons mentioned in rule 28(5) or (7) shall, save in the case of persons mentioned in rule 28(7)(k), take any part in the hearing or (where entitled or permitted to remain) in the deliberations of the Tribunal.
(8) For the purposes of arriving at its decision a Tribunal shall, and for the purposes of discussing a question of procedure, may, notwithstanding anything contained in these Rules order all persons to withdraw from the sitting of the Tribunal other than the convener and members of the Tribunal and any of the persons mentioned in rule 28(7)(f) to (j).
Evidence at hearing
30.-(1) Evidence at a hearing may be given in person or by written statement, but, subject to the provisions of these Rules, the Tribunal may at any stage of the proceedings require the personal attendance of the maker of a written statement.
(2) A party shall only be permitted to give evidence by written statement if such statement is submitted prior to the expiry of the case statement period or at any other time with the consent of the other party and with the approval of a convener or the Tribunal at a hearing.
(3) A convener or the Tribunal may at the start of a hearing, on the application of either party or on their own initiative, determine that a witness be allowed to give evidence by telephone, video link or any other means of communication, if satisfied that this would not prejudice the achievement of the overriding objective.
Postponement of hearing
31.-(1) A convener may, on their own initiative, or on application by either party, postpone any hearing.
(2) The Secretary shall notify the parties of the date, time and place of any subsequent hearing following postponement.
Adjournment of hearing
32.-(1) A Tribunal may from time to time adjourn a hearing.
(2) A hearing shall not be adjourned solely on account of the failure of a witness to appear unless the Tribunal, on cause shown, so directs.
(3) When the hearing is adjourned, a convener or the Tribunal may give directions to be complied with, before or at the resumed hearing.
(4) Such directions may require a party to provide such particulars or evidence as may reasonably be required for the determination of the claim.
(5) If a party fails to comply with such a direction, the Tribunal shall take account of that fact when determining the claim or deciding whether to make an order for expenses.
(6) The Secretary shall notify the parties of the date, time and place for the resumed hearing.
Representation
33.-(1) If at any time a party wishes to be represented by a person other than a representative named in the claim or the response, they shall give notice to the Secretary of the name and address and profession of that person.
(2) If at any time a party no longer wishes to be represented by a representative of whom details have been provided they shall notify the Secretary.
(3) If at any time a person named as the representative of a party is not prepared, or is no longer prepared, to represent that party they shall notify the Secretary.
(4) At the hearing of a claim a party may conduct their own case, with assistance from any person if they wish, or may appear and be represented by their representative.
(5) If, in any particular case, a Tribunal is satisfied that there are good and sufficient reasons for doing so, it may refuse to permit a particular person to assist or represent a party at the hearing.
(6) The Secretary shall, where a party is represented, send all documents and notices concerning the claim to the representative instead of the party.
(7) Except in relation to citations under rule 22 or 23, references in these Rules (however expressed) to giving or sending any notice or other document to a party shall be construed as references to giving or sending any notice or other documents to the representative of that party.
Children
34.-(1) Any child who is a claimant may give evidence.
(2) Any child of 12 years of age or over who is not a claimant may give evidence.
(3) A child under 12 years of age who is not a claimant may only give evidence where a convener or the Tribunal considers-
(a)that the evidence of the child is necessary to enable a fair and just hearing of the claim; and
(b)that the welfare and interests of the child will not be prejudiced by so doing.
(4) Where a child gives evidence in person, a convener or the Tribunal may appoint for the purpose of the hearing a person with appropriate skills or experience in facilitating the giving of evidence by children.
(5) The Secretary shall pay such reasonable fees, expenses or allowances as the President may determine to any person appointed under this rule.
Late evidence
35. At the start of a hearing, where a party proposes to submit further documents not already lodged as productions, or to call a witness not on their list of witnesses, the Tribunal, after considering any representations from the other party, may allow that proposal if it is satisfied that, in all the circumstances, it would be fair and just to do so.
Restricted reporting orders
36.-(1) If it appears appropriate to do so a restricted reporting order may be made by a convener or a Tribunal at a hearing.
(2) A restricted reporting order is an order limiting or prohibiting the publishing of any matter specified in the order, which may include matter likely to lead members of the public to identify the claimant or any child under 16 years of age or other individual, where it is considered that they should not be identified.
(3) In this rule "publishing" includes, without prejudice to the generality of that expression-
(a)publishing any matter in a programme service, as defined by section 201 of the Broadcasting Act 1990(12); and
(b)causing any matter to be published.
(4) An order under this rule may be made in respect of a limited period and may be varied or revoked by a convener or a Tribunal before or at the hearing.
Failure of parties to attend
37.-(1) If a party fails to attend or be represented at a hearing of which they have been duly notified, the Tribunal may-
(a)unless it is satisfied that there is sufficient reason for such absence, hear and determine the claim in the party's absence; or
(b)adjourn the hearing.
(2) Before disposing of the claim in the absence of a party, the Tribunal shall consider the claim, any response, any statement of case, any supplementary written statement of case and any written evidence submitted in accordance with the Rules.
Decisions on claims
38.-(1) Where the Tribunal is constituted by a convener and one member under these Rules the convener shall have a second or casting vote.
(2) The decision of a Tribunal may be given orally at the end of the hearing or may be reserved and, in any event, whether there has been a hearing or not, shall as soon as may be practicable be recorded in a document signed by the convener.
(3) The Secretary shall-
(a)when sending a copy of the document referred to in paragraph (2) to each party, send notice about the circumstances in which there is a right to appeal under paragraph 11 of Schedule 17 to the 2010 Act against a Tribunal decision; and
(b)enter such details in the Register as the President may from time to time direct under paragraph 12 of Schedule 1 to the 2004 Act.
Orders of the Court
39.-(1) If any appeal against a decision of a Tribunal is allowed by order of the Court of Session, the Secretary shall alter the entry relating to the decision in the Register to conform to that order and shall notify the parties accordingly.
(2) If by order of the Court of Session a claim is remitted back to the Tribunal or to a differently constituted Tribunal, and subject to any directions or orders of the court made under paragraph 11(3) of Schedule 17 to the 2010 Act, the Secretary shall notify the parties that, during such period as a convener may specify each party may submit a supplementary statement of case and further written evidence.
(3) If an appeal against an order to dismiss a claim is allowed by the Court of Session, the Secretary shall notify the parties-
(a)in the case where the case statement period had not expired before the order to dismiss took effect-
(i)that a new case statement period shall be commenced in accordance with rule 8; and
(ii)that, within the new period, the parties may submit the documentation referred to in sub-‘paragraph (b) in respect of a statement of case or evidence submitted before the dismissal took effect; or
(b)in any other case, that each party may within such period as the convener may specify submit a supplementary statement of case along with any further written evidence.
(4) The Secretary shall forthwith send a copy of all statements and written evidence received from a party in accordance with this rule to the other party.
Expenses
40.-(1) A Tribunal shall not normally make an order as to expenses, but may, subject to paragraph (2), after disposing of a claim, make such an order-
(a)against either party if it is satisfied that the party has acted frivolously or vexatiously or that their conduct in the making or pursuing or the resisting of a claim was wholly unreasonable;
(b)against a party who failed to attend or be represented at any hearing of which they were duly notified;
(c)against the responsible body where they have not delivered a response under rule 10; or
(d)against the responsible body where the Tribunal considers the disputed decision or failure was wholly unreasonable.
(2) A Tribunal may not make an order as to expenses against a party who is the person to whom the claim relates.
(3) An order as to expenses may be made as respects any expenses incurred or fees or allowances paid by any party to any person.
(4) An order shall not be made under paragraph (1) against a party unless that party has been given an opportunity to make representations to the Tribunal, whether in writing or in person as the Tribunal may specify, against the making of the order.
(5) An order made under paragraph (1) may require the party against whom it is made to pay to the other party either a specified sum in respect of the expenses incurred by that other party in connection with the proceedings or the whole or part of such expenses as taxed if not otherwise agreed.
(6) An order under this rule for expenses as taxed shall allow the Auditor of the Court of Session to make a detailed assessment and tax the expenses on such basis as the order may specify.
PART 6MISCELLANEOUS
Miscellaneous
41.-(1) Subject to the provisions of the 2004 Act, the 2010 Act and these Rules, a Tribunal may regulate its own procedure.
(2) A Tribunal may, if it thinks fit, make a decision in terms agreed in writing by the parties.
(3) A function of the Secretary may be performed by another member of the Tribunal staff duly authorised by the President.
Change of responsible body
42.-(1) A convener or a Tribunal at a hearing may order that, for all the purposes of the claim, a new responsible body be substituted for, or be added to the claim with, the original responsible body.
(2) The claimant, the original responsible body and the new responsible body shall have an opportunity to be heard before an order is made under paragraph (1).
(3) When an order is made under paragraph (1)-
(a)the Secretary shall notify the claimant, the original responsible body and the new responsible body;
(b)where a new responsible body is substituted for the original responsible body, the original responsible body shall no longer be a party;
(c)the new responsible body shall become a party;
(d)the Secretary shall send to a new responsible body copies of all the documents and written evidence relating to the claim duly received by the Tribunal from the claimant or from the original responsible body; and
(e)the convener or the Tribunal shall give directions as to further procedure and in particular may set new dates for the new case statement period or for any hearing.
Power to exercise functions of a convener
43.-(1) Any function of a convener may be exercised by the President or by any member of the panel of conveners selected by the President.
(2) Where the President or a member of the panel of conveners determines any preliminary or incidental matter alone, then unless the interests of fairness and justice require that particular claim to be determined by a Tribunal with the same convener, the claim may be considered by a Tribunal constituted by the President with a different convener, if the President considers it necessary or expedient.
(3) Subject to rule 48(6), if the circumstances referred to in paragraph (4) occur after the decision of a convener or of a Tribunal, the functions of the convener for the completion of the proceedings may be exercised by the President or any member of the panel of conveners.
(4) The circumstances referred to in paragraph (3) are-
(a)the death or incapacity of the convener; or
(b)the convener ceasing to be included in the panel of conveners.
Power to exercise functions of members other than conveners
44.-(1) If either of the circumstances referred to in paragraph (2) occur after the decision of a Tribunal, the functions of that Tribunal may be undertaken by the convener and the remaining member.
(2) The circumstances referred to in paragraph (1) are-
(a)the death or incapacity of a member other than the convener; or
(b)such a member ceasing to be included in the panel of members.
(3) This rule shall not apply to a Tribunal-
(a)which is constituted with a convener and one member in accordance with rule 29(5); or
(b)in relation to which the President or another member of the panel of conveners is acting in place of the convener in accordance with rule 43(3).
Register
45.-(1) The Secretary shall keep a Register of Claims to the Tribunals.
(2) There shall be entered in the Register a note of all claims, and the entry for each case shall contain the following particulars where appropriate-
(a)the names and addresses of the parties;
(b)brief details of the nature of the claim;
(c)the date of any hearing including any hearing on preliminary or incidental matters, and, where appropriate, the nature of the hearing and any hearing at which the convener sat alone;
(d)details of any directions or orders issued; and
(e)the document in terms of which the decision of a Tribunal has been recorded under rule 38(2).
(3) The Register or any part of it may be kept in electronic form.
Publication
46.-(1) The President shall make such arrangements as the President considers appropriate for the publication of Tribunal decisions.
(2) Decisions may be published electronically.
(3) A decision may be published in an edited form, or subject to any deletions, where the President or a convener considers that to be appropriate bearing in mind-
(a)the need to safeguard the welfare and interests of the person to whom the claim relates or of any other person;
(b)the need to protect the private life of any person;
(c)any representations on the matter which any person has provided in writing to the Tribunal at any time prior to publication under the arrangements made under paragraph (1).
(4) A decision of the Tribunal shall be published in such a manner as to protect the anonymity of the person to whom the claim relates.
Review
47.-(1) If, on the application of a party, a Tribunal is satisfied that-
(a)its decision was based on an error of fact or in law;
(b)a party, who was entitled to be heard at a hearing but failed to be present or represented, had a good reason for failing to be present or represented and the interests of justice require; or
(c)otherwise that the interests of justice require,
the Tribunal may review and vary or revoke the relevant decision.
(2) An application for the purposes of paragraph (1) must be-
(a)delivered to the Secretary at any time not later than one month after the date on which the decision was issued to the applicant; and
(b)in writing stating the reasons for the making of the application in full.
(3) The Secretary must send a copy of the application to any other party involved in the claim within 10 working days of receipt.
(4) The Tribunal may dispense with a hearing where both parties so agree in writing.
(5) The review must be decided as soon as reasonably practicable by the Tribunal which decided the case or, where it is not practicable for it to be heard by that Tribunal, by a Tribunal appointed by the President.
(6) If, having reviewed the decision, the decision is to be varied or revoked, the Tribunal must substitute the decision it thinks fit or order a rehearing before either the same or a differently constituted Tribunal.
(7) On the setting aside or variation of the Tribunal's decision the Secretary must, as soon as reasonably practicable, make such correction as may be necessary in the Register and must send a copy of the entry so corrected to each of the parties.
(8) Rule 38 shall apply to the Tribunal's decision on the review.
Irregularities
48.-(1) Any irregularity resulting from failure, at any time before the Tribunal has determined the claim, to comply with any provision of, or direction made under, these Rules shall not by itself render the proceedings void.
(2) Where any such irregularity comes to the attention of a Tribunal, the Tribunal may, and shall, if it considers that any person has been prejudiced by the irregularity, give such directions as it thinks just before reaching its decision to cure or waive the irregularity.
(3) Clerical mistakes in any document recording the decision of a Tribunal or a direction or a decision of a convener or errors arising in such documents from accidental slips or omissions may at any time be corrected by the convener by certificate under their hand.
(4) The Secretary shall as soon as may be send a copy of any corrected document containing reasons for a Tribunal's decision to each party and shall correct any relative entry in the Register as appropriate.
(5) Where a claimant has appointed a representative in accordance with rule 5 or 33 the Secretary shall (notwithstanding rule 33(6)) send a copy of the document referred to in paragraph (4) to the claimant as well as to the representative.
(6) Where these Rules require the convener of a Tribunal to sign a document, and where by reason of death or incapacity the convener is unable to do so, the other members of the Tribunal, whom failing the President, shall sign it and certify that the convener is unable to sign.
Proof of documents and certification of decisions
49.-(1) A document purporting to be a document issued by the Secretary on behalf of the President, a convener or a Tribunal shall, unless the contrary is proved, be deemed to be a document so issued.
(2) A document purporting to be certified by the Secretary as a true copy of a document containing a decision of a Tribunal shall, unless the contrary is proved, be sufficient evidence of its contents.
Manner and time of service of notices etc.
50.-(1) A notice given under these Rules shall be in writing and a person required under these Rules to notify a matter to the Secretary shall do so in writing.
(2) Notices and documents required by these Rules to be sent or delivered to the Secretary may be sent by post, by fax or by electronic communication to or be delivered at the address of the Secretary or such other address as the Secretary may notify.
(3) Any citation under rule 22 or 23 shall-
(a)be posted by first class recorded or special delivery post properly addressed and pre-‘paid to the addressee at their ordinary or last notified address; and
(b)be deemed, unless the contrary is proved, to have been received on the second working day after posting.
(4) Any notice or document, other than a citation under rule 22 or 23, required or authorised to be given or sent under these Rules shall, subject to the provisions of paragraph (6) be deemed to have been given or sent if it was-
(a)sent by first class post properly addressed and pre-‘paid to the addressee at their ordinary or last notified address; or
(b)transmitted by fax or communicated electronically to a fax number or electronic address specified by the addressee.
(5) Any such notice or document as is referred to in paragraph (4), shall, unless the contrary is proved, be deemed to have been received-
(a)where sent by first class post, on the second working day after posting; or
(b)if transmitted by fax or communicated electronically, on the first working day after the day on which it is received in legible form.
(6) Any such notice or document as is referred to in paragraph (4) shall not be transmitted by fax or electronic communication to a person unless that person has confirmed in writing that notices or documents will be considered to have been duly sent if transmitted or communicated to a specified fax number or electronic address.
(7) A person may at any time by notice to the Secretary change their address for service under these Rules.
(8) Where for any sufficient reason service of any document or the giving of any notice cannot be effected in the manner prescribed under this rule, a convener or a Tribunal may dispense with service or make an order for substituted service in such manner as may be deemed fit and such service shall have the same effect as service in the manner prescribed under this rule.
(9) In this rule, "working day" has the meaning given to it in rule 2 except that it includes any day in July which is not a Saturday, a Sunday or a day specified as a bank holiday in accordance with these Rules.
Signature of documents
51. Where any of these Rules requires a document to be signed, that requirement shall be satisfied-
(a)if the signature is written; or
(b)subject to rule 5(1) in the case of a document which is communicated electronically in accordance with these Rules by the electronic signature of the individual who is required to sign it.
ADAM INGRAM
Authorised to sign by the Scottish Ministers
St Andrew's House,
Edinburgh
10th February 2011
EXPLANATORY NOTE
(This note is not part of the Rules)
The Equality Act 2010 ("the 2010 Act") extended the jurisdiction of the Additional Support Needs Tribunals for Scotland ("the ASNTS") to include claims made under Chapter 1 of Part 6 of the 2010 Act. The ASNTS was created under section 17 of, and Schedule 1 to, the Education (Additional Support for Learning) (Scotland) Act 2004 ("the 2004 Act"). These Rules prescribe the practice and procedure to be followed as regards such claims. The Rules are similar to the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 ("the 2006 Rules") which govern practice and procedure before the ASNTS in proceedings under the 2004 Act but contain amendments appropriate for the new jurisdiction.
Part 1 of these Rules contains introductory provisions.
Part 2 contains rules about the start of proceedings before the Tribunals.
Part 3 contains rules about the management powers of the Tribunals.
Part 4 contains rules in relation to evidence for claims to the Tribunals.
Part 5 contains rules about hearings before, and decisions of, the Tribunals.
Part 6 contains miscellaneous and general provisions which apply to proceedings before the Tribunals.
2004 asp 4. Paragraph 11 was amended by section 20 of the Education (Additional Support for Learning) (Scotland) Act 2009 (asp 7).
The Additional Support Needs Tribunals for Scotland are a "listed tribunal" for the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007, under S.S.I. 2007/436.
2004 asp 4 as amended by the Education (Additional Support for Learning) (Scotland) Act 2009 (asp 7) and the Equality Act 2010 c.15, Schedule 17, paragraph 12 and Schedule 27.
The address of the Commission's offices in Scotland is The Optima Building, 58 Robertson Street, Glasgow.
S.S.I. 2006/ 88, as amended by S.S.I. 2010/152 and 274.
1990 c 42; section 201 was amended by the Communications Act 2003 (c.86), section 360(1) and (2).