Chamber and committees

I think that I said that I have met with COSLA, not that I have not—

That is a fair contention. That is the most up-to-date census data that was available to us when we prepared the financial memorandum. However, it is not unreasonable to assume that our data is right because, as I said earlier, we cross-referenced the census data with data on children with additional support needs. When we look at that data, which is more regularly updated—I believe that it was updated yesterday—and the number of disabled people in the census, we can come to a conclusion about the number of people who would access support under the plan.

That is an interesting point. I have had to submit a parliamentary question to try to get that information, because the level 4 information in the budget does not detail specific funding for that. It is difficult for me to tell what is being spent on the transitions of young disabled people and how much the strategy will have behind it. That is the kind of question that is really important.

The costs associated with the bill must be specifically related to the framework that it is putting in place. The financial memorandum specifically details a lot of that in a way that I have not necessarily seen in some Government budgets, because it goes into a significant level of detail. All of us, in our various committees, have just scrutinised the Government’s budget, and it is fair to say that it has been a difficult process. I contend that, because the figures in our financial memorandum are contingent on a given number of people, which relates to a number of hours and, therefore, the costs, it details the rationale for the costs in a way that some Government bills have not done.

No, I do not think that we should wait. In my opening statement, I said that the data that the committee is aware of—young disabled people are three times more likely to end up not in education, employment or training—was the same in 2008, when Inclusion Scotland wrote the briefing that I have in front of me. The data was probably the same prior to that, too.

Disabled people are consistently told, “This next strategy will be the thing. You do not need this in legislation.” I remember that from working on policy when I worked in the area. There was a constant refrain of “The next thing will do it,” but it has not done it yet. Here we are, almost 20 years since we started to work together in the field—I am sorry, Bill; I said that I would not out that number—and the rights of young disabled people still do not deliver the fighting chance that they need. Therefore, I do not think that we should wait for the strategy.

How long does the committee think that disabled people should wait? What does it think is the right timescale to say whether the strategy is or is not working? Right now, there are disabled people in communities who are about to leave school or have already left school with no plan. They cannot wait for the Government’s strategy, which is not yet published.

I fully acknowledge that the Government has committed to that strategy, and I fully believe that it will be published. I take the ministers at their word, but those disabled people cannot wait for that. I urge the committee to consider that question and say how long it thinks that it is acceptable to wait and see whether that strategy works.

The outcome was as Bill Scott described: there is a departure when it comes to agreement on the figures. I want to assure you—and I go back to my comments about the National Audit Office and the Law Society—

I heard the evidence that you took in which reference was made to the “legislation salad”. That was a really good description of where things are.

There is a bit of a legislation salad—I cannot disagree with that. A number of bits and pieces of legislation are relevant here, but none of them are delivering the change that we really need to see. We are still in a situation whereby young disabled people are less likely to be in employment and more likely not to be in education or training.

The current salad is not what we need. We need a bit of a different menu, if I am honest. I say that because of some of my earlier points on the Education (Additional Support for Learning) (Scotland) Act 2004. The Morgan review also recognised that. It said that the

“Additional Support for Learning legislation is over-dependent on committed individuals”—

that speaks a bit to Ruth Maguire’s earlier question about the implementation gap—

“is fragmented, inconsistent and is not ensuring that all children and young people who need additional support are being supported to flourish and fulfil their potential.”

As I said, the Law Society of Scotland recognised that, too.

There is nothing in the bill that says that the principles into practice framework should no longer exist or that it would not continue. I think that the work that is being done on principles into practice and the work of the Scottish Transitions Forum is excellent, and I suggest that that could dovetail really nicely with some of the powers in the bill for guidance and support. As with any piece of legislation, people will need support, advice and guidance. We need principles on which to support it. Furthermore, we might want to consider putting principles into practice into the legislation, so that it then drives the practice that we need to see.

There are various pieces of legislation. The salad might include, for example, the Social Care (Self-directed Support) (Scotland) Act 2013. The independent review of the legislation said that self-directed support needs to be scaled up. However, that is separate from the bill. If I thought that I could introduce one bill that would solve every problem that disabled people in Scotland face, from when they are born until they die, I would do that.

A number of different bits of legislation are intended to have an impact on disabled people’s lives. However, we do not have something that supports them through a crucial part of their life—from about the age of 14, which is proposed in the bill, up until the age of 26—that, as Bill Scott set out earlier, helps people to pull together all that legislation salad, that gives them rights and support at different parts of their life and that becomes a co-ordinating framework for that management.

Right now, too many families are distressed and are struggling to cope. People’s transitions are being addressed far too late. My inbox is full—as, I am sure, all your inboxes are—of people saying that their son or daughter is leaving school the following week and they do not have a transition plan in place. We really need something that pulls everything together, that co-ordinates things and that works well with the different aspects of the salad that are on the plate.

However, it must also say that we will have a national transitions strategy that will look at what action we need to improve the outcomes of disabled young people; that we will have a plan in place specifically for that group of people, to address the transitions; and that there will be responsibility and accountability at the ministerial level to ensure that people and families can see clearly what their rights are. The professionals working in the area also need to understand what that means, so that they can navigate that salad a bit more easily.

I would appreciate it. Thank you for the question.

I just want to say at the outset that we have done the best that we can to produce the figures in the financial memorandum. However, as with the bill, we are prepared to discuss these things in detail. I have had meetings about this with COSLA, but I note that there are certain points of departure. It has said, for example, that an additional member of staff will be needed to do something, while I have pointed out that existing staff already have such duties and responsibilities. There are, therefore, a few questions about existing responsibilities and the costs attached to them. I would argue that, if we are not already putting in the resources that COSLA says that we need to put in to meet the requirements of disabled people and give them a fighting chance to have a future, we are failing them. I would therefore call that an admission of failure.

As for the pounds and pence in the figures, I want to start with the figure of 4,000 people that we have set out in the financial memorandum. That figure has been based on the definition used in the census with regard to the disabled people who will be able to access a plan under the bill, and it includes the number of ASN pupils as well as the census data. Usually, the census data uses the definition of disabled people in the 2010 act, and we have looked at that and multiplied it by the number of local authorities. Of course, this is where the law of averages comes in. We have seen the evidence, and I know that the committee, too, has written evidence from, I believe, councils such as Glasgow that have said that the figure will be much more, and from other authorities that have said that it will be different. I understand how that can happen with the way that averages are used and the concerns about that.

However, the most important thing to remember is this: if COSLA and local authorities are arguing that it will be significantly more expensive to do this, we have to ask ourselves what we are not doing already that makes this such an additional cost. We have spent a lot of time this morning talking about existing duties, responsibilities and legislation, but we also have organisations such as COSLA saying, “Actually, it’ll cost a lot more if we do this.” Either those responsibilities exist now and councils should be spending money on them, or they do not exist—which is another argument for the bill.

I thank Ruth Maguire for that question.

There are a number of reasons for the implementation gap, and you have highlighted some of them. They include issues around culture, education and support, training, awareness raising and resources. Crucially, however, policy is driven by legislation, and I believe that the current policy and legislative framework is not driving the change that we need. I will take a moment to talk through the current structures and why I do not think that they are what we need right now. The Scottish Government’s own literature review, which was published this week, recognised that there have been significant failures across guidance and, indeed, in implementation.

The Fraser of Allander Institute reflected that transitions do not need to be difficult if they are well planned and well managed. However, the evidence suggests that that is rarely the case. The Royal College of Occupational Therapists told the committee:

“Everyone feels that they are working in crisis mode at the moment, which means that transitions and long-term planning are taking a step back.”—[Official Report, Education, Children and Young People Committee, 1 February 2023; c 32.]

That highlights one of the serious concerns about implementation. When the going gets tough, it is always disabled people who end up having to get going. We have seen that happen through various different economic crises, including the Covid-19 pandemic and the current cost of living crisis. We know, therefore, that the implementation gap exists, but we also know that, when it is not a statutory duty to provide something for disabled people, it is not provided. That is the stark reality of the society that we are living in. We really need the legislation to drive the policy.

The Law Society agrees. It has said that a national transitions strategy would contribute to achieving all

“the rights accorded by the UN Convention on the Rights of Persons with Disabilities by ensuring that all relevant policies and planning—as well as individual planning—achieves that purpose.”

It went on to say:

“we would suggest that significant improvement is unlikely to be achieved without legislative measures.”

Much of that rests in the legislative structure created by the Education (Additional Support for Learning) (Scotland) Act 2004. The 2004 act provides for a co-ordinated support plan to be made available. We know that very few people get a co-ordinated support plan, but we also know that the transitions plans that would be covered by the legislation are limited in nature, given the purpose of the co-ordinated support plan. They focus only on education, and they are not deliberately targeted at disabled people, whom the bill is intended to support.

We recognise that there is a significant underrepresentation of disabled people in employment and those going on to positive destinations. The bill seeks to address that group of people and to support them. The statutory guidance locates the planning process within the 2004 act and within a child’s plan, but the part of the legislation that contained the child’s plan was repealed in 2019, which left a huge gap in provision. The duties in the 2004 act cover all pupils with additional support needs, but that is limited by the words “think fit (if any)”, and the local authority might not think it fit to exchange information or to put in place a plan for a young disabled person.

It is a different group of people that we are looking to support under the bill. We are looking to address the significant discrimination and oppression faced by a group of people who have a protected characteristic and who are disabled people under the Equality Act 2010. The duties and regulations in the 2004 act are caveated in that they apply

“only in relation to such children and young persons as the authority consider appropriate.”

The review of co-ordinated support plans, which comes under the 2004 act, considered that there is a need for clarity in the relationship between those plans, child plans and other plans. In fact, the review suggested a one child, one plan approach, and I contend that the bill would deliver that.

The point that you ended on, about bringing in legislation to support that and make it happen, is key. As I said in my earlier answer, possibly to Stephen Kerr or Graeme Dey—forgive me, I cannot remember who it was—about putting the principles into practice, there are opportunities for us to say what is working really well and what is not working. There are lots of things that we can do to improve the practice on the ground—of course there are. However, ultimately, legislation drives policy and policy drives practice—or it should, as I think we all know. That is why I believe that we need to look at this.

On the points that you have just made—about the practitioner saying that it is just another plan in a pile, that there are lots of other plans and that it is all a bit much, so we should perhaps just focus on what needs to be done—all the reviews of the current ASL legislation agree with that practitioner. They say that there is too much, to an extent, and that we need a one child, one plan focus. That is what the bill provides.