Links to other legislation, policies and guidance
The Act should be read alongside other legislation and policy supporting children and young people in Scotland. Some of the main aspects of these are set out below.
Equality for all underpins the Act. It allows schools, local authorities and other agencies to address additional support needs which may arise as a result of inequality and discrimination.
The Human Rights Act 1998 incorporates the European Convention on Human Rights into Scots law. It supports the requirement for local authorities and other bodies not to discriminate on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The Disability Discrimination Act 1995, as amended, requires local authorities and schools not to treat disabled pupils less favourably and to make reasonable adjustments to avoid putting them at a substantial disadvantage.
The Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002 places a duty on education authorities, managers of grant-aided schools and the owners of independent schools to prepare a strategy to increase, over time, the physical accessibility of the school environment and the accessibility of the curriculum for pupils with disabilities and prospective pupils with disabilities. The strategy must also provide for the improvement of communication with pupils with disabilities, especially in relation to the provision of school information.
The Children (Scotland) Act 1995 establishes the responsibilities of services, providers and parents in matters affecting children's care and welfare. Local authorities must provide services designed to minimise the impact of disabilities on children and to allow them to lead lives which are as fulfilling as possible. Children's views must be sought and taken account of in key decisions that affect them.
The Race Relations (Amendment) Act 2000 places a general duty on public bodies, including education authorities in respect of schools they manage, to eliminate unlawful racial discrimination and to promote equality and good race relations. Education authorities must have a race equality policy and make arrangements for schools to monitor and assess the impact of their policies on pupils, staff and parents from different racial groups, including in relation to attainment.
Under the Education (Scotland) Act 1980 education authorities must provide adequate and efficient school education for children of school age within their area. The Standards in Scotland's Schools etc. Act 2000 places education authorities under a duty to secure that the education provided is directed towards the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.
s15(1)(b) and s40 2000 Act
Education authorities should provide education to school age pupils in a mainstream setting unless certain exceptions apply. Education authorities must make special arrangements for pupils who are unable, or where it would be unreasonable to expect them, to attend school through prolonged ill-health.
s2(2) 2000 Act
Education legislation gives certain rights to parents and young people rather than to children in their own right. However, the 2000 Act recognises that children should have the right to express views on issues that affect them. Chapter 6 of the code describes where children's views should be taken into account under the new Act.
s2 Age of Legal Capacity Act 1991
The new Act also sits alongside legislation which recognises that children with legal capacity are able to make some decisions on their own behalf. For example, a child over 12 may consent to any medical procedure or treatment and instruct a solicitor in relation to civil matters so long as he or she is considered capable of understanding their nature and possible consequences.
Young people (young persons in legislation) have similar rights to parents regarding school education. They may also express their views on, and take decisions about, their school education.
Adults with Incapacity (Scotland) Act 2000
The law provides for decisions to be made on behalf of adults who lack legal capacity to do so themselves because of mental disorder or inability to communicate. Adults are defined as being over 16 years of age. The decisions concerned may be about the adult's property or financial affairs, or about their personal welfare, including medical treatment. Professionals carrying out functions under the Additional Support for Learning Act should have due regard to the provisions of the Adults with Incapacity Act.
s30 1980 Act
Parents, under the 1980 Act, must ensure that their children of school age receive adequate education suitable for the age ability and aptitude of their child, either by sending their child to a school managed by the education authority, or by other means, for example an independent school or home education.
Children (Scotland) Act 1995
Parents must, where it is in the interests of the child and is practicable, safeguard and promote their child's health, development and welfare. This also applies to anyone over 16 who has care or control of a child under the age of 16. In addition, parents can provide their children who are under 18 years of age, with appropriate direction and guidance. They should maintain personal relations and direct contact with their son or daughter on a regular basis, if they do not live with their child. Parents can also act as their child's legal representative. Where a person takes a major decision in fulfilling a parental responsibility or right under the 1995 Act they must have regard to the views of the child, taking account of the child's age and maturity and whether the child wishes to express a view.
The NHS Reform (Scotland) Act 2004 provides the legislative framework for the development of Community Health Partnerships which lays strong emphasis on partnership, integration and design.
The Protection of Children (Scotland) Act 2003 introduced safeguards to prevent unsuitable people from working with children. The Act covers a range of childcare positions defined in the 2003 Act, not just those involved in directly caring for, training, supervising or being in sole charge of children. It includes those whose normal duties include work in educational establishments or in hospitals which are mainly for children.
Professionals carrying out functions under the Mental Health (Care and Treatment) (Scotland) Act 2003 should have due regard to the provisions within education legislation, as there may be instances where there is some crossover between them.
The Antisocial Behaviour etc (Scotland) Act 2004 introduces Parenting Orders which are compulsory measures designed to support people to improve their parenting where they have been identified as needing help with their parenting skills. Antisocial Behaviour Orders are introduced for 12 to 15 year olds and are intended to deal with a small number of persistently antisocial young people for whom available alternatives are not working. The Act gives the Reporter and a children's hearing power to refer a child who has been excluded from school to Scottish Ministers if it appears that the local authority have failed to comply with its duty to provide education to excluded children and young people. These aspects of the Act could lead to a child or young person having additional support needs. Children and young people who become looked after could be particularly vulnerable in any of the above circumstances.
The Further and Higher Education (Scotland) Act 1992 requires that adequate and efficient provision of further and higher education is made in Scotland. Due regard should be given to the requirements of those over school age who have a learning difficulty or disability which may affect their education. In preparing young people for leaving school, teachers should be aware of legislation covering further and higher education. Under the Further and Higher Education (Scotland) Act 2005, the Scottish Further and Higher Education Funding Council must have regard to the support needs of students and prospective students of further education colleges and higher education institutions.
The Scottish Executive has a wide range of policies which supports the development and well-being of Scotland's children and young people. The broad definition of additional support needs means that application of the Act's provisions requires effective interaction across policies in a number of areas. The following paragraphs describe some of these policy areas.
The Act complements Scottish Ministers' high expectations and aspirations for all of Scotland's children and young people. These expectations and aspirations apply across agency, service and professional boundaries. Ministers' aspiration for all children and young people in Scotland is that they should be successful learners, confident individuals, responsible citizens and effective contributors to society and at work. Ministers believe that children and young people should be:
Safe: they should be protected from abuse, neglect and harm by others at home, at school and in the community.
Nurtured: they should live within a supportive family setting, with additional assistance if required, or, where this is not possible, within another caring setting, ensuring a positive and rewarding childhood experience.
Healthy: they should enjoy the highest attainable standards of physical and mental health, with access to suitable healthcare and support for safe and healthy lifestyle choices.
Achieving: they should have access to positive learning environments and opportunities to develop their skills, confidence and self esteem to the fullest potential.
Active: they should be active with opportunities and encouragement to participate in play and recreation, including sport.
Respected & Responsible: they and their carers should be involved in decisions that affect them, should have their voices heard and should be encouraged to play an active and responsible role in their communities.
Included: they and their carers should have access to high quality services, when required, and should be assisted to overcome the social, educational, physical, environmental and economic barriers that create inequality.
Integrated Children's Services
Local authorities, NHS Boards and other appropriate agencies are expected to work together to ensure effective integrated children's services. In doing so, they require to draw together core statutory and other planning requirements into a single statutory plan. These include Children's Services Plans, Statements of Education Improvement Objectives and Records of Achievement, child health elements of Local Health Plans, Joint Health Improvement Plans and Child Health Strategies, and Youth Justice Strategies. Integrated Children's Services Plans must include reference to services for vulnerable children and children in need, including arrangements for early intervention and support within universal services and targeted additional support where required. Given the broad concept of additional support needs there is a need to integrate policies to ensure that factors affecting vulnerable children and children in need do not lead to an adverse effect on their learning.
The Scottish Executive report, For Scotland's Children, highlighted the importance of an integrated approach to service delivery and the need for better information sharing between agencies. The Scottish Executive is developing a model for an Integrated Assessment Framework which will support agencies to work together. The aim is to facilitate efficient and effective information sharing and assessment and lead to integrated support for children across all agencies. The framework will be based on a common set of core data that can be shared across organisations. The duties on other agencies to assist education authorities meet their duties under the Act will help the development of such an integrated approach to the provision of school education, family support and health services.
The Standards in Scotland's Schools etc. Act 2000 requires that Scottish Ministers should set national priorities in education. Five National Priorities in Education underpin the Scottish Executive's education policies. These are:
Achievement and Attainment: to raise standards of educational attainment for all in schools, especially in the core skills of literacy and numeracy, and to achieve better levels in national measures of achievement including examination results.
Framework for Learning: to support and develop the skills of teachers, the self discipline of pupils and to enhance school environments so that they are conducive to teaching and learning.
Inclusion and Equality: to promote equality and help every pupil benefit from education, with particular regard paid to pupils with disabilities and special educational needs, and to Gaelic and other lesser used languages.
Values and Citizenship: to work with parents to teach pupils respect for self and one another and their interdependence with other members of their neighbourhood and society, and to teach them the duties and responsibilities of citizenship in a democratic society.
Learning for Life: to equip pupils with the foundation skills, attitudes and expectations necessary to prosper in a changing society, and to encourage creativity and ambition.
All 5 priorities are relevant to ensuring that children and young people with additional support needs receive the help they require. The priorities are delivered in a range of educational settings, but the overarching context is one of schools developing their capacity to provide for the full range of children and young people within education.
Integrated Community Schools have the twin aims of promoting social inclusion and raising educational standards in Scotland. They require teachers, social workers, family workers and health personnel to work together to develop common objectives and goals centred on the needs of children at school and on their families. This approach is essential to secure good outcomes, not only for children's education, but also for their social welfare, their health and the well being of the community where they live.
The Scottish Executive's approach to delivering integrated early years services is aimed at giving young children, up to the age of 6, the best possible start in life. It offers a framework for the effective provision of universal and targeted services for children and their families and provides a vision of integrated early years services based on partnerships at all levels. Building on existing provision, Scottish Ministers want to see the development of multi-faceted services, bringing together childcare, pre-school education and some healthcare services focused on young children.
The Scottish Executive report Better Behaviour - Better Learning provides recommendations for schools and education authorities to develop a policy framework and appropriate practices to promote positive behaviour in schools. These policies and practices should enable school staff to ensure that learning and teaching takes place with the minimum of disruption through good classroom and school management, and through a clear understanding of all staff and pupils of expectations for behaviour. Better Behaviour - Better Learning recognises the importance of early intervention and of co-ordinating support for pupils with behavioural difficulties.
The Scottish Executive also has a wide range of policies across health, social work and other agencies which supports children and young people who have additional support needs.
Community Health Partnerships are beginning to take shape across Scotland. These partnerships will have a significant influence on the organisation and delivery of person-centred locally integrated services. They will be a focus for integrating primary and specialist health services at a local level, will help advance and deliver the health improvement agenda, and will influence the deployment of resources. They will also have a lead role in the delivery of services for children and young people at a local level.
Community Health Partnership Statutory Guidance has been published to support the establishment of partnerships. Supplementary advice has also been issued on how partnership should inform local approaches to the integration of children's services. The guidance and supplementary advice recognise that one model does not fit all, and that approaches will develop to fit local circumstances.
The Scottish Executive 2003 review of speech and language therapy, physiotherapy and occupational therapy services for children, called on service providers to develop new methods of working in non-traditional and inclusive settings, such as mainstream schools and nurseries and other community settings. Other recommendations called on local authorities and NHSScotland to develop integrated approaches to the provision of therapy and other related interventions for children. Work is being undertaken to address the review's recommendations and this will dovetail with the Act.
The Scottish Executive publication, Health for All Children (Hall 4), provides guidance on health screening based on recommendations made by the Royal College of Paediatrics and Child Health. It sets Hall 4 in the context of other Scottish policies to promote effective and integrated provision of universal and targeted services for children and families, and describes the activity needed for implementation at national and local levels. The guidance provides a holistic approach to child health surveillance and screening in Scotland. It also describes initiatives that will inform effective child health promotion and surveillance.
The Scottish Executive guidance, A Scottish Framework for Nursing in Schools, sets out the role of the school nursing team and standards for practice in school medical services. NHS Health Scotland is undertaking development work on a school health profiling tool that will inform the development of school health plans and, ultimately, the school planning process. This will inform school-based approaches to health improvement, including the activities of the school nursing service within each school. The role of the school nursing service will move away from a focus on routine surveillance, towards a combination of school population-focused health improvement, and addressing the individual health needs of vulnerable children. In accordance with the recommendations in both Hall 4 and A Scottish Framework for Nursing in Schools, there should be a named nurse for each school, with access to a wider team of health support such as community children's nurses, paediatricians and therapists.
The Scottish Executive is developing a framework for children and young people's mental health. Children and Young People's Mental Health: A Framework for Promotion, Prevention and Care sets out a range of activities and approaches to support children and young people's mental health and wellbeing. The framework has been developed to support integrated approaches to children and young people's mental health, across mental health promotion, prevention of mental illness, and care and treatment for those with mental health problems. It highlights mental health promotion and stresses the importance of considering the child's global environment, recognising elements which support mental health and wellbeing as well as those factors which may increase the risk of mental health problems, including the potential impact of a parent's ill health on their child.
The framework promotes a "mainstream" approach to mental health and wellbeing, which equips a range of health and other children's services professionals with the basic skills
to be able to support parents in developing a basic understanding of risk and protective factors that may affect their child's mental health and wellbeing. To support this, NHS Education for Scotland has published a mental health competency framework for all those involved in supporting children, young people and their families. Education policy and practice already has a strong focus on promoting and supporting emotional wellbeing, and the Health Promoting Schools concept broadens this focus beyond the curriculum to a "whole school approach".
Children and families
The Scottish Executive has embarked upon a programme to reform child protection services following the Audit and Review of Child Protection, It's everyone's job to make sure I'm alright. The programme includes a Children's Charter and a Framework for Standards for child protection. The charter sets out the support that the most vulnerable children have the right to expect. The framework sets out what children in Scotland can expect from professionals and agencies to ensure that they are adequately protected and their needs are met. The child protection reform programme is underpinned by a range of work across the Executive on integrated children's services and early intervention strategies.
The Scottish Executive review of the children's hearings system, Getting It Right For Every Child, proposed that measures to improve the hearings system be linked to improvements in the wider network of children's support services. There are concerns that children are not receiving support when they need it, and that many are being referred to the Children's Reporter when more effective local action would be more appropriate. The Scottish Executive is consulting on phase 2 of the Hearings Review, including options to strengthen individual agency and collective responsibility for identifying and addressing children's needs. This will link with, and build on, the work to develop an Integrated Assessment Framework, outlined previously, and with the developments underway within the child protection reform programme.
The joint Her Majesty's Inspectorate of Education/Social Work Services Inspectorate inspection report, Learning with Care, looked at the education of children looked after away from home by local authorities. It included specific recommendations for social work and educational services provided by local authorities. The additional support needs framework is relevant for the work of all professionals working with children who are looked after.
The Scottish Executive report, Improving the Effectiveness of the Youth Justice System, established a set of national standards for Scotland's youth justice services. Every local authority must have a multi-disciplinary youth justice team to implement these standards and to achieve the national target of reducing the number of persistent offenders. The development of national standards for youth justice will take place in the context of integrated children's services at a national and a local level and the strategy for youth justice services will be incorporated in integrated children's services plans.
The Scottish Executive has published its response to Hidden Harm - The Report of the Inquiry by the Advisory Council on the Misuse of Drugs which sets out the measures, either underway or in the planning stages, to tackle the problem across Scotland. In addition, to its response, the Executive has set up the Hidden Harm New Agenda Steering Group to oversee the implementation of the report's recommendations, but also to promote progression from joint planning of separate services to achieving more integrated service planning and delivery for children of substance misusing parents.
Post-school education services
Following the report of the Beattie Committee, Implementing Inclusiveness: Realising Potential (1999), the Scottish Executive endorsed the principle that inclusiveness should underpin all post-school education. Inclusiveness is about providing learning opportunities that give the best match to the needs of the individual. All further education colleges in Scotland continue to develop inclusive, learner-centred policies. The Scottish Executive has published Partnership Matters which provides guidance to local authorities, NHS Boards and voluntary organisations on supporting students with additional needs in further education. The guidance sets out the roles and responsibilities of all the agencies involved and encourages a partnership approach to cross-agency working. It recognises that young people may experience barriers to accessing and participating in learning, and that colleges and schools may be required to work together to plan for and prepare the young person for transition from school to post-school education.
As part of the commitment to providing learning opportunities that give the best match to the needs of the individual, the Executive has published a consultation paper, Finding Practical Solutions to Complex Needs, about the arrangements for supported further education places and funding for students with complex needs. Further information is available in the resources section.
The same as you? review of services for people with learning disabilities called for an inclusive approach to services for children, young people and adults with learning disabilities and autistic spectrum disorders. It highlighted how the transition phase between child and adult services is crucial and the need for partnership between local authorities and NHS Boards in planning services. Work on taking forward the recommendations from the review is well underway. This includes publication of Working for a change? which aims to improve employment opportunities for people who want to work, and emphasises the importance of support during the transition to post-school employment, education and training. A further report on implementation of The same as you? for children is due to be published in autumn 2005.