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The Education (Additional Support for Learning) (Scotland) Acts 2004 & 2009: Consultation on Changes to the Secondary Legislation and Supporting Children's Learning Code of Practice

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Consultation Paper No 2

EDUCATION (ADDITIONAL SUPPORT FOR LEARNING) (SCOTLAND) ACT 2009 (the 2009 Act)

The Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2009

CONSULTATION PAPER NO 2.

1. INTRODUCTION AND OVERVIEW

The Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act) places duties on education authorities to make adequate and efficient provision for the additional support needs of every child and young person for whose school education they are responsible and who requires additional support for learning. Education authorities must identify, support and review the needs of all children with additional support needs.

The above duties apply to those children (or young persons) for whom education authorities provide, or are likely to provide, education either directly or indirectly. This means pupils at local authority schools and nurseries, independent special schools where the education authority is meeting the fees, and independent nurseries that are in partnership with the education authority, or places other than schools where the authority is providing school education. Parents are able to formally request the education authority to establish whether their child has additional support needs or requires a co-ordinated support plan.

A co-ordinated support plan is for those children and young persons with enduring additional support needs arising from complex or multiple factors for whose school education the education authority are responsible, who require significant support from more than one source. The aim of the co-ordinated support plan is to plan long-term and strategically for the achievement of a child's or young person's educational outcomes, and to foster co-ordination across the range of services, both within and outwith the authority required to support this.

2. LEGISLATIVE FRAMEWORK

The 2004 Act

Section 9 of the 2004 Act specifies the duties relating to co-ordinated support plans. Where it is established that a child or young person requires a co-ordinated support plan, and the education authority are responsible for their school education, then the authority must prepare a plan. The plan must record:

  • the reasons for the individual's need for additional support,
  • the planned outcomes to be achieved that will ensure that the individual benefits from school education,
  • the additional support required to achieve these outcomes and who will provide that support,
  • the school the individual is to attend,
  • the details of the nominated person who will co-ordinate the plan, and
  • contact details of a named officer from whom information and advice may be sought.

The nominated co-ordinator and the contact person can be either one person or two separate people. The co-ordinator does not need to be employed by the education authority but the contact person does.

Section 10 of the 2004 Act provides for reviews of co-ordinated support plans. Education authorities have a duty to keep under consideration the adequacy of each co-ordinated support plan for any child or young person belong to their area. The education authority must therefore review each plan every 12 months. It may be reviewed earlier if there has been a significant change in the circumstances of the child or young person, for example if their needs change or if progress is greater than expected. This will ensure that the information contained in the plan remains up-to-date and relevant, especially the educational outcomes and the support needed to achieve these.

Parents, or a young person, may also request the education authority to review the plan at an earlier interval than 12 months. The education authority must comply with such a request unless the request is unreasonable.

Section 11 of the 2004 Act describes the procedures to be followed by education authorities in preparing or amending co-ordinated support plans. If consideration is being given as to whether a child or young person may require a co-ordinated support plan, or the plan needs to be reviewed, then, before proceeding, the education authority must inform the parent or young person (or managers of an independent or grant-aided school, if applicable) of their intentions. On establishing whether the child or young person requires a co-ordinated support plan, or on completion of the review of the plan, they must also inform the parent or young person of the outcome and of any rights they may have to appeal to an Additional Support Needs Tribunal.

When a plan has been prepared, or amended, the education authority must provide a copy of the plan to the parent or young person and then take steps to ensure that the plan is implemented and the support co-ordinated. To facilitate this, the education authority must also provide information about the contents of the plan to those involved in providing the support that is set out in the plan. This is likely to be those in other agencies, such as health professionals, or others in the local authority such as social workers.

Subsection 11(8) enables the Scottish Ministers to make further provision in regulations about co-ordinated support plans, including provision about their form, content and the timescales and procedures attaching to managing those plans. It is intended that these regulations will, among other things, provide a template to be used by education authorities for co-ordinated support plans.

The Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005 contain detailed information on: the form and content of a co-ordinated support plan; time limits for preparation and review of a plan; arrangements for keeping the plan; arrangements regarding the transfer for a plan to another education authority; arrangements for the disclosure without explicit consent of the plan to specified persons or in specified circumstances; and arrangements for the discontinuance, retention and destruction of a plan. These regulations replaced and revoked the Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Regulations 2005 (S.S.I. 2005/266)

The 2009 Act

The Education (Additional Support for Learning (Scotland) Act 2009 (the 2009 Act) amends section 10 of the 2004 Act to provide that following a successful out of area placing request, responsibility for reviewing any co-ordinated support plan will transfer from the authority in which the child or young person lives to the authority that is responsible for the education of the child or young person. The 2009 Act also provides that in such circumstances, where a co-ordinated support plan is transferred from one education authority to another, the receiving authority must review the co-ordinated support plan as soon as practicable.

The 2009 Act enables the Tribunal to consider a placing request appeal if, at any time before the education appeal committee or sheriff has made their final decision on the placing request appeal, a co-ordinated support plan is being prepared, is being considered or the authority have decided that the child or young person does not require such a plan and that decision has been referred to the Tribunal.

The 2009 Act also provides that a reference can be made to the Tribunal where parents or young persons have requested that the authority establish whether the child or young person requires a co-ordinated support plan and the authority have not responded to that request within a specified period of time (set out in regulations). The failure to respond is treated as if it were a decision by the education authority that no co-ordinated support plan was required. It also provides that where an authority have notified a parent or young person that they will establish whether the child or young person requires a co-ordinated support plan but, after a specified period of time (set out in regulations), the authority have not made a decision on the matter either way, that failure is to be treated as if it were a decision of the authority that no co-ordinated support plan is required. Decisions of an authority that no co-ordinated support plan is required can be referred to the Tribunal.

3. PROPOSED CHANGES TO THE LEGISLATION

i. Transferring and reviewing a co-ordinated support plan following a successful out of area placing request

Current position

Following a successful out of area placing request, while responsibility for the child's or young person's school education transfers to the new 'host' authority, responsibility for reviewing any co-ordinated support plan remains with the original 'home' authority (section 10 of the 2004 Act). .

Regulation 9 of The Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005 refers only to the transfer of co-ordinated support plan where a child moves residential address from one local authority's area to another. Regulation 9 does not currently cover those children who live in one local authority area but are attending school in another authority's area.

The 2009 Act

The 2009 Act enables parents of children with additional support needs and young persons with additional support needs including those with co-ordinated support plans to make requests for their children or themselves (as appropriate) to attend a school outwith the local authority area in which the child or young person lives.

For children and young persons with additional support needs who are attending a school outwith the area in which they live following a successful out of area placing request, the 2009 Act transfers responsibility for reviewing any co-ordinated support plan to the new 'host' authority.

Proposed changes

Under section 11(8)(g) of the 2004 Act, it is proposed to amend the Regulations to provide that:

  • following a successful out of area placing request, in cases where a child or young person has a co-ordinated support plan, the plan should be transferred to the new host authority.
  • the timescale for the transfer of the plan from the home authority to the host authority will be 4 weeks from the date the child starts at the new school or, where a child has already started school in the new host authority, 4 weeks from the date on which the home authority becomes aware of the change (this mirrors the provisions contained in Regulation 9).
  • on receipt of the co-ordinated support plan the new authority must treat the plan as if it had been prepared by the new authority.
  • on receipt of the transferred co-ordinated support plan, the new host authority must conduct a review of the co-ordinated support plan within the time limits currently set for the review of such a plan as detailed in regulations 5 and 7 of The Additional Support for Learning (Co-ordinate Support plan) (Scotland) Amendment Regulations 2005.

Q1. Do you agree that the Regulations should be amended to facilitate the transfer of a co-ordinated support plan between authorities for those children who live in one authority area but are attending school in another authority's area?

Q2. If you do not agree with the proposal outlined in Q1, please state your reasons why.

Q3. Are you content that on receipt of any transferred co-ordinated support plan, the new host authority must conduct a review of the co-ordinated support plan within the time limits currently set for the review of such a plan as detailed in Regulations 5 and 7?

Q4. If you do not agree with Q3, please provide your reasons why.

ii. Time limit for preparation of a co-ordinated support plan

Current position

The supporting children's learning code of practice states that where an authority has received a request under section 6(2)(b) of the 2004 Act from a parent or young person to establish whether their child/they require a co-ordinated support plan, the authority should notify the person making the request of their decision to either comply or refuse to comply with the request as quickly as possible, but certainly no later than 4 weeks from when the request is received.

Where an education authority is responsible for the school education of a child or young person then their decision not to comply with a request to establish whether a co-ordinated support plan is required is treated as a decision of the education authority that the child or young person does not require a co-ordinated support plan. In notifying the parents or young person of their decision, they must also notify them of their right to make a reference to the Tribunal.

Where the education authority agree to comply with the request from the parent or young person, the authority must notify the parents or the young person, before proceeding, of their proposal to establish whether the child or young person requires a co-ordinated support plan (section 11(2)(a) of the 2004 Act)

An education authority will have 16 weeks in which to either produce a completed co-ordinated support plan or inform the parent or young person of their decision that the child or young person does not require a plan. The time limit starts from the date the education authority inform the child's parents or the young person of their intention to establish whether the child or young person requires or would require a co-ordinated support plan.

The 2009 Act

The 2009 Act extends the circumstances in which parents and young people can make references to the Tribunal to include:

1. failure by the authority to respond within a specified period of time (set out in Regulations) to a request from a parent or young person to establish whether a co-ordinated support plan is required; and
2. following an authority issuing their proposal to establish whether a co-ordinated support plan is required, failure by the authority to make a decision on the matter either way within a specified period of time.

Proposed changes

Under section 11(8)(g), it is proposed to set the specified periods of time, as described in bullet points 1 and 2 above, as follows:

  • where a parent or a young person has requested that the authority establish whether the child or young person requires a co-ordinated support plan and the authority has not responded to that request within 8 weeks, the authority's failure to respond is treated as if it were a decision by the authority that no co-ordinated support plan is required.
  • where an authority have notified a parent or young person that they will establish whether the child or young person requires a co-ordinated support plan but, after 16 weeks, the authority has not made a decision on the matter either way, that failure is to be treated as if it were a decision of the authority that no co-ordinated support plan is required. The decision of an authority that no co-ordinated support plan is required can be referred to the Tribunal under either section 18(5A) or 18(5B) of the 2004 Act, as amended by the 2009 Act.

Q5. The 2009 Act enables cases to be referred to the Tribunal where a parent or young person requests an authority to establish whether a co-ordinated support plan is required and the authority fails to respond to the request within a specified period of time. Do you agree that the specified period of time should be 8 weeks?

Q6. If you disagree with the 8 week period suggested at Q5 above, please state your reasons why.

Q7. If you disagree with the 8 week period suggested at Q5 above, how many weeks do you think are more appropriate? Please provide your reasons.

Q8. The 2009 Act enables cases to be referred to the Tribunal where the education authority have issued their proposal to establish whether a co-ordinated support plan is required (under section 11(2)(a)) but, within a specified timescale, has not taken a decision either way. Do you agree that the specified period of time should be 16 weeks?

Q9. If you disagree with the 16 week period suggested at Q8 above, please state your reasons why.

Q10. If you disagree with the 16 week period suggested at Q8 above, how many weeks do you think are more appropriate and why?

iii. Time limit for responding to a request from a parent or young person for an early review of a co-ordinated support plan

Current position

The education authority must review each co-ordinated support plan every 12 months. It may be reviewed earlier if there has been a significant change in the circumstances of the child or young person, for example if their needs change or if progress is greater than expected. This will ensure that the information contained in the plan remains up-to-date and relevant, especially the educational outcomes and the support needed to achieve these.

A parent, or a young person, may also request the education authority to review the plan at an earlier interval than 12 months. The education authority must comply with such a request unless the request is unreasonable.

Proposed changes

Under section 11(8)(g), it is proposed to introduce a new timescale within which an authority must respond to a request from a parent or young person to conduct an early review of a co-ordinated support plan. It is proposed that:

  • an authority will have 4 weeks starting from the date on which the authority receive the review request from the parent or young person to issue their proposal under section 11(2)(a) or their refusal to comply with the request under section 28(2). Failure by the authority to issue their proposal or decision will be treated as if it were a decision by the education authority to refuse the request.

Q11. Should a timescale be introduced within which an authority must respond to a request from a parent or young person to conduct an early review of a co-ordinated support plan?

Q12. If you disagree with the proposal at Q11, please state your reasons.

Q13. If you agree with Q11, are you content with the 4 week timescale proposed or do you think a shorter or longer duration would be more appropriate?

iv. Information flow arrangements

The 2009 Act

The 2009 Act enables the Tribunal to consider any placing request appeal, where a co-ordinated support plan is being prepared or is being considered, at any time before the final determination by an education appeal committee (appeal committee) or sheriff.

Paragraphs 6 and 7 of schedule 2 to the 2004 Act, as amended by the 2009 Act, specify the exact circumstances in which a placing request appeal can be transferred from the appeal committee or sheriff to the Tribunal. The circumstances are:

  • a co-ordinated support plan has been prepared (and not discontinued) for the child or young person,
  • no such plan has been prepared, but it has been established by the authority that the child or young person requires such a plan,
  • no such plan has been prepared, but the authority have issued their proposal (under section 11(2)(a)) to establish whether the child or young person requires a co-ordinated support plan, or
  • the authority have decided that the child or young person does not require such a plan and that decision has been referred to the Tribunal.

Proposed changes

In order to facilitate the transfer of an out of area placing request appeal from the appeal committee or sheriff to the Tribunal, under section 11(8)(g) of the 2004 Act, it is proposed to:

  • place authorities under a duty when writing to parents or young people regarding any co-ordinated support plan related matter (including any decision not to comply with a co-ordinated support plan related request) to advise the parent or young person that where they have an outstanding placing request or placing request appeal with another local authority (the potential host authority), they should notify that potential host authority that their child/they are in co-ordinated support plan territory. Also, that in any future placing requests submitted by the parent or young person to another authority, the parent or young person should notify the potential host authority of any the co-ordinated support plan action.
  • place the potential host authority under a duty to notify its appeal committee so that the placing request appeal can be transferred to the Tribunal or notify the sheriff in writing that the placing request appeal should be transferred to the Tribunal.

Q14. Do you agree that authorities should be placed under a duty when writing to parents or young people about co-ordinated support plan matters to advise the parents or young person that where they have an outstanding placing request or placing request appeal with a potential host authority, they should notify that potential host authority that their child/they are in co-ordinated support plan territory.

Q15. If you do not agree with the proposal outlined in Q14, can you suggest an alternative method to ensure that a potential host authority is informed of the fact that a child or young person, for whom they have an outstanding placing request or placing request appeal, is in co-ordinated support plan territory?

Q16. Do you agree that authorities should be placed under a duty when writing to parents or young people about co-ordinated support plan matters to advise the parents or young person that in any future placing requests submitted by the parent or young person to another authority, the parent or young person should notify the potential host authority of any co-ordinated support plan action.

Q17. If you do not agree with the proposal outlined in Q16 can you suggest an alternative method to ensure that a potential host authority is informed of the fact that a child or young person, for whom they have received a placing request is in co-ordinated support plan territory?

Q18. Do you agree that a potential 'host' authority should be placed under a duty to notify its appeal committee or the sheriff that the placing request appeal should be transferred to the Tribunal?

Q19. If you do not agree with the proposed outlined in Q18, what other method do you suggest for ensuring that the appeal committee or sheriff transfer the placing request appeal to the Tribunal?

v. Discontinuance, retention and destruction of the plan

Current position

Regulation 11 of The Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005 currently stipulates that where a co-ordinated support plan is to be discontinued following a review, or where the education authority is no longer responsible for the child's or young person's school education, the discontinued plan must be retained for a period of 5 years from the date of discontinuance.

If the plan is to be discontinued following a review, the education authority must inform the child's parents or young person of their decision. The education authority must not discontinue the plan before the expiry of any prescribed period during which the parent or young person can refer the decision to the Tribunal. The Scottish Ministers have powers in paragraph 11(2) of schedule 1 to the 2004 Act to prescribe a time limit for references to the Tribunal of certain decisions, information or failures under section 18(3) of the 2004 Act.

At the end of the 5 year retention period, the co-ordinated support plan must be destroyed. The education authority should notify the child's parents or the young person that this has happened, if the whereabouts of the parents or young person are known to the authority.

Where a Tribunal overturns the education authority's decision to prepare, or continue, a co-ordinated support plan, the education authority must notify the child's parents or the young person when the plan will be discontinued and ask them to let the authority know within 21 days whether they want the plan to be retained for a period of 5 years or not. If the answer is yes then the plan must be retained. If the answer is no, or there is no response, the education authority must destroy the plan and let the parents or young person know this has happened.

The education authority must also notify any person named in the plan as providing additional support and such other persons as they consider appropriate of the discontinuance of the plan and its date.

During the period that the plan is retained, the provisions on disclosure in regulation 10 apply.

Proposed change

Under section 11(8)(c) of the 2004 Act, it is proposed to amend:

  • Regulation 11 of The Additional Support for Learning (Co-ordinate Support plan) (Scotland) Amendment Regulations 2005 to provide authorities with a discretionary power in relation to informing the parents or young person that the plan has been destroyed. It is envisaged that this discretionary power should only be used in those circumstances where the authority deem it inappropriate to contact the parent or young person.

Q20. Are you content for authorities to have discretion regarding the duty to notify a child's parents or the young person at the end of the 5 year retention period that the co-ordinated support plan has been destroyed?

Q21. If you are not content for authorities to have the discretionary power mentioned in Q20, please state your reasons why.

Q22. Do you have any other comments on the changes to the Co-ordinated Support Plan Regulations?