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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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Chapter 1 Summary of the Additional Support for Learning Act

1. This chapter summarises the main provisions of the Education (Additional Support for Learning) (Scotland) Act 2004, referred to throughout this code as the Additional Support for Learning Act, or as, simply, the Act. This summary takes account of amendments to the Act introduced by the Education (Additional Support for Learning) (Scotland) Act 2009 (referred to as "the 2009 Act") but does not cover all of the Act's provisions. It is provided for ease of reference as a brief overview of the Act, as amended. It is not an authoritative interpretation of the legislation which only the courts can provide.

2. The Act provides the legal framework underpinning the system for supporting children and young people in their school education, and their families. This framework is based on the idea of additional support needs. This term applies to children or young people who, for whatever reason, require additional support, long or short term, in order to help them make the most of their school education. Children or young people may require additional support for a variety of reasons and may include those who:

  • have motor or sensory impairments
  • are being bullied
  • are particularly able or talented
  • have experienced a bereavement
  • are looked after by a local authority 3
  • have a learning difficulty
  • are living with parents who are abusing substances
  • are living with parents who have mental health problems
  • have English as a second language
  • are not attending school regularly
  • have emotional or social difficulties
  • are on the child protection register
  • are young carers.

3. The above list is not exhaustive nor should it be assumed that inclusion in the list automatically implies that additional support will be necessary. However, the 2009 Act automatically deems that all looked after children and young people have additional support needs unless the education authority determine that they do not require additional support in order to benefit from school education. In addition, education authorities must consider whether each looked after child or young person for whose school education they are responsible requires a co-ordinated support plan.

Functions and duties of education authorities

4. The Act confers various functions and imposes duties on education authorities in connection with the provision of school education for children and young people with additional support needs belonging to their area. Some of the main duties are listed below. Education authorities must:

  • make adequate and efficient provision for the additional support required for each child or young person with additional support needs for whose school education they are responsible, subject to certain exceptions
  • make arrangements to identify additional support needs
  • keep under consideration the additional support needs identified and the adequacy of support provided to meet the needs of each child or young person
  • provide appropriate additional support for certain disabled children under school age (generally children under 3 years old) belonging to their area who have been brought to the attention of the authority as having additional support needs arising from their disability
  • presume that all looked after children and young people have additional support needs unless the authority determine that they do not require additional support to enable them to benefit from school education
  • publish, review and update, as necessary, specified information about their policy and arrangements in relation to provision for identifying, addressing and keeping under consideration such provision for each child or young person with additional support needs for whose school education the authority are responsible
  • ensure that a summary of the information published under the Act as amended is available, on request, from each place in the authority's area where school education is provided, regardless of whether the school is under the management of the education authority
  • provide the above summary in any handbook or other publications provided by any school in the authority's area or by the authority for the purposes of providing general information about the school or, as the case may be, the services provided by the authority, and on any website maintained by any such school or the authority for that purpose
  • provide those children or young people who need it with a co-ordinated support plan and keep this under regular review
  • provide independent and free mediation services for those parents and young people who want to use such services and publish information on these services
  • have in place arrangements for resolving disputes
  • at least 12 months prior to the expected school leaving date, request, and take account of, information and advice from appropriate agencies likely to make provision for the child or young person when he or she leaves school
  • no later than 6 months before the child or young person is expected to leave school provide information to whichever appropriate agency or agencies, as the authority think appropriate, may be responsible for supporting the young person once he or she leaves school, if the child's parent or young person themselves agrees.

Powers of education authorities

5. The Act gives education authorities the power to help children and young people belonging to their area who have or may have additional support needs and for whose school education they are not responsible. Those who may be supported include children and young people sent to independent schools by their parents and those being educated at home.

6. Parents of the above children or young people may request the education authority to establish whether a child or young person has additional support needs or, if the education authority were responsible for the school education of the child or young person, would require a co-ordinated support plan. The education authority are not required to comply with the request but if they do they must provide the parent or young person with information and advice about the additional support required.

7. Managers of grant-aided or independent schools may request the education authority to establish whether a child or young person attending their school would require a co-ordinated support plan, if the education authority were responsible for the school education of the child or young person. The education authority are not required to comply with the request but if they do they must provide the managers of the school with information and advice about the additional support required.

8. Education authorities may arrange for children or young people with additional support needs to attend establishments outwith the United Kingdom which make provision wholly or mainly for those with such additional support needs.

Appropriate agencies

9. The Act has an impact wider than education and has significant implications for service providers and professionals working in the health and social work sectors and other appropriate agencies. An appropriate agency must help the education authority in the exercise of any of its functions under this Act, if requested to do so by the education authority, unless the request is incompatible with the agency's own statutory or other duties or unduly prejudices the agency's discharge of its own functions. Under the Act an appropriate agency can be:

  • any other local authority
  • any NHS Board

10. The Act enables Scottish Ministers to make an order naming other appropriate agencies. In addition to the above, Scottish Ministers have determined that Careers Scotland, all Colleges of Further Education and all Institutions of Higher Education, in Scotland, are appropriate agencies for the purpose of the Act.

Rights of parents and young people

s135(1) 1980 Act as amended

11. The Act introduces new rights for parents and young people. The term "parent" has the same meaning as in the 1980 Act and includes "guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of the Children (Scotland) Act 1995 in relation to, or has care of a child or young person." Parents have rights (and young people have these rights on their own behalf) to:

  • request the education authority to establish whether their child has additional support needs or requires a co-ordinated support plan
  • receive advice and information about their child's additional support needs
  • request, at any time, a specific type of assessment and/or examination for the purpose of considering the child's additional support needs as well as when the education authority propose to establish whether a child or young person has additional support needs or requires a co-ordinated support plan (or where a plan is being reviewed)
  • request the use of mediation services
  • make use of dispute resolution arrangements for matters about additional support needs that are specified in regulations - generally matters not eligible to be considered by the Additional Support Needs Tribunal 4 for Scotland
  • make a placing request to the education authority requiring them to place the child or young person in a specified school which can include an independent or grant-aided special school if their child has additional support needs
  • make a placing request to another education authority for their child to attend a school under the management of that authority
  • be informed of the outcome of requests under the Act, reasons why a request is refused and any applicable rights to have a decision reviewed, for example, through mediation or dispute resolution, or referred to a Tribunal or an Education Authority Appeal Committee where it concerns a placing request where there is no related co-ordinated support plan matter
  • request the education authority to establish whether their child needs a co-ordinated support plan or to review an existing plan
  • receive a copy of the co-ordinated support plan, and any amended plan
  • be asked for their views and have them taken into account and noted in the co-ordinated support plan
  • refer to the Tribunal specified matters relating to co-ordinated support plans and related placing requests
  • have a supporter with them or an advocate to present their case at any meeting with the school or education authority, in connection with the exercise of the education authority's functions under the Act and at tribunal hearings.
  • have access to a free advocacy service in tribunal proceedings.