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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 4 School Attendance: Rights, Responsibilities and Placing Requests

Introduction

1. For the purpose of arranging for children to attend schools, local authorities usually divide cities, towns and country areas into school catchment areas and children living in the same catchment area usually attend the same school. Most children and young people with additional support needs are educated in their local schools under the management of the education authority to which the child or young person belongs. This is the authority in which they usually reside with their parents, referred to here as the home education authority. Some children with additional support needs may attend schools in the local authority outwith their catchment areas as a result of arrangements made by the authority with the agreement of the parents. For example, children and young people may attend special schools or other schools in the local authority because they are better able than the local school to provide education to meet the child's or young person's additional support needs.

2. This chapter considers the following four circumstances under which a child or young person may not be receiving school education in their local school.

  • the parents may be educating the child or young person at home or may have arranged for the child or young person to attend an independent or grant-aided school
  • the home education authority may have entered into arrangements with another education authority to have the child or young person educated in a school under the management of that education authority
  • the home education authority may have arranged for the child or young person to be educated in an independent or grant-aided special school, or a school in England, Wales or Northern Ireland providing wholly or mainly for children or young people with additional support needs
  • the child may be being educated in a school as a result of a successful placing request made by the parent(s). A young person may have made such a placing request in his/her own right.

3. With regard to the last point above, parents may make a placing request:

  • to the home education authority for their child to attend a school, outwith their catchment area, managed by the home education authority
  • to another education authority for their child to attend a school managed by that other education authority
  • to the home education authority for their child to attend an independent or grant-aided special school in Scotland or a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and the school makes provision wholly or mainly for children or young people with additional support needs.

Sch 2(8)

4. Young people can make placing requests on their own behalf unless the education authority are satisfied that they lack the capacity to do so in which case the parents can act on their behalf

5. In considering each of the above, the focus in this chapter will be on where the responsibility for providing the education rests when a child is educated at home or in a school outwith his or her catchment area and what procedures are available for the parents or young people to pursue when they have concerns or disputes about the provision available. In particular, the Act provides parents and young people with access to mediation, dispute resolution and the Additional Support Needs Tribunal for Scotland (referred to here as "the Tribunal") in certain circumstances. While each of these is considered in detail in Chapter 8 the following summary is provided here for ease of reference.

  • mediation: an education authority must have an independent mediation service in place for disagreements relating to matters concerning the exercise of the authority's functions under the Act. It allows disputing parties to seek to resolve their differences with the assistance of a mediator acting as an impartial third party. Mediation is free of charge to parents and young people.
  • dispute resolution: the procedure for resolving disputes allows for a formal review of an individual case by an independent third party, external to the local authority, who considers the circumstances leading to the disagreement, and makes a report with recommendations for all parties. The referral for dispute resolution is made to the Scottish Ministers and dispute resolution is free of charge to parents and young people.
  • Tribunal: the Tribunal will hear references from parents and young people on matters relating to co-ordinated support plans, placing requests and school to post-school transitions. The Tribunal's statutory functions, decisions and dealings with its users and the public are independent of government, national and local. It is free of charge to parents and young people.

An authority's functions under the Act

s7(1)
s6(1)(a)

6. An authority's functions under the Act refer to their powers under the Act and to their duties under the Act. The authority's powers under the Act are discretionary so the authority may choose to exercise these or not. For example, where parents of a child belonging to the area of an authority, but for whose education the authority are not responsible, request the authority to establish whether their child has additional support needs the authority may comply with request but need not do so. However, duties are mandatory and must be carried out. For example, each authority must make arrangements to identify from among those children and young people for whose education they are responsible those who have additional support needs.

Parents providing education at home or through making arrangements for attendance at an independent or grant aided school

7. Section 30 of the Education (Scotland) Act 1980 states that "It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means." Most parents discharge this duty by sending their child to a school managed by the local authority in which they live. However, they may discharge their duties under the 1980 Act by educating their child at home or by making arrangements for him/her to attend an independent or grant-aided school under circumstances where the home education authority are not responsible for the child's education. Usually, the parents would require to meet any costs of their child attending such a school.

8. The Act gives education authorities the following powers (see Chapter 3 paragraphs 61-66):

  • to help children and young people belonging to their area who have, or may have, additional support needs (eg they could provide support to a child being home educated or attending an independent school)
  • to respond to requests from parents, managers of grant-aided or independent schools or young people themselves to establish whether children or young people have additional support needs and would require a co-ordinated support plan if the education authority were responsible for the education of the child or young person.

Mediation

s15
s7(2)(a)(i)
s7(7)
s5(4)

9. Parents of children for whose school education an authority are not responsible have access to an education authority's mediation services. Young people have access in their own right. However, mediation is available only where the disagreement relates to the authority's exercise of their functions under the Act. For example, parents of a child at an independent or grant-aided school, for whose school education the authority are not responsible, may request the authority to establish whether the child has additional support needs or would require a co-ordinated support plan. If the authority decide to exercise their discretion not to do this then the matter cannot be referred to mediation because the authority have no duty to carry out any assessment. However, if the authority have exercised their discretionary power and have established that the child has additional support needs or would require a co-ordinated support plan then they are obliged to provide the parents with information and advice about the additional support required. Failure to do so could be referred to mediation and/or to the Scottish Ministers under section 27 of the 2004 Act or section 70 of the 1980 Act, as a failure to comply with this duty would be a failure to comply with education legislation. The authority are not obliged to provide the support so identified, but may exercise their discretionary power to do so. However, where they have provided the support and, for example, wish to change it, then if the parents disagree with the authority's decision in relation to the provision of support they may refer the matter to mediation.

Dispute resolution

s16

10. As with mediation services, parents and young people have access to an education authority's dispute resolution arrangements, irrespective of whether the authority are responsible for a particular child's or young person's school education. However, the matter in dispute must be related to the authority's exercise of their functions under the Act and must be one of the specified matters in the Regulations 12. In the example above, if the authority have established that the child has additional support needs or would require a co-ordinated support plan but have not provided the parents with the necessary information about the additional support required then the matter cannot be referred for dispute resultion because failure to provide the information is not a specified matter in the Regulations. However, where the authority have exercised their discretionary power to provide additional support and then alter the level of support provided, then the matter can be referred to dispute resolution because failure to provide additional support is one of the specified matters in the Regulations.

Tribunal

s18(1)

11. Disputes can only be referred to the Tribunal where an education authority are responsible for the school education of the child or young person. Therefore, in the circumstances described above, where no education authority are responsible for the child's education (eg where the child is being home educated or has been placed by parents in an independent or grant-aided school), there is no Tribunal access.

The home education authority have entered into arrangements with another education authority to have the child or young person educated in a school under the management of that education authority

12. The home education authority may enter into arrangements with another education authority to have the child or young person, for whose school education they are responsible, educated in a school under the management of that other education authority, referred to here as the host education authority. Typically this situation arises because these arrangements enable the home education authority to fulfill their duty under the Act to 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. It may be that the home education authority lacks a specialist provision (eg special school provision or teachers with expertise in a particular aspect of providing for additional support needs) which the host education authority can provide. Or, a particular child or young person may be looked after away from home and placed with foster parents in another local authority and attending a school in that local authority.

s29(3A)

13. In these circumstances, the home education authority retain responsibility for the child's or young person's school education even though the child or young person is being educated in a school in another education authority. For example, the home education authority retain responsibility for identifying and keeping under review the additional support required, for preparing and reviewing co-ordinated support plans where these are required, and for providing mediation and dispute resolution. To all intents and purposes it is as if the child or young person is being educated in a school under the management of the home education authority itself.

Mediation

14. The home education authority are responsible for providing mediation should this be required. However, the disagreement for which mediation is requested must relate to the exercise of the home authority's functions under the Act. For example, a parent may consider that the additional support being provided for the child in the host authority is inadequate and may request the home authority to arrange with the host authority to improve it. Failure on the part of the home authority to do this could be referred for mediation.

Dispute resolution

15. As with mediation, dispute resolution is provided by the home education authority. The disagreement must relate to the discharge of the authority's functions under the Act and it must be a specified matter in the Regulations. In the example, above, since failure to provide, or make arrangements for the provision of, additional support (whether relating to education or not) required is a specified matter then the parent may access dispute resolution.

Tribunal

16. Where references to the Tribunal are made these would be in terms of decisions, information and failures of the home education authority. References to the Tribunal are considered in more detail in paragraphs 32-39 below and in Chapter 8. Set out below are some examples of matters which may be referred to the Tribunal. This list is not exhaustive:

  • the home authority's refusal to grant a placing request for the child to attend a special school under the management of the home authority;
  • or, indeed, any authority's refusal to grant a placing request for the child to attend a special school under the management of that authority;
  • or, the home authority's refusal to grant a placing request for the child to attend an independent special school;
  • or, the refusal of the home authority to grant a placing request to a school in England, Wales or Northern Ireland which makes provision wholly or mainly for additional support needs and where the managers of the school are willing to admit the child.

The home education authority have arranged for the child or young person to be educated in a grant-aided or independent special school, or a special school in England, Wales or Northern Ireland

17. The home education authority may have arranged for the child or young person to be educated in a grant-aided or independent special school, or a special school in England, Wales or Northern Ireland . As in paragraph 13 above the home education authority retain responsibility for the child's or young person's education and are subject to all of the relevant duties in terms of the Act.

Mediation

18. The home education authority remain responsible for providing mediation services as in paragraph 14 above.

Dispute resolution

19. Likewise, the home education authority retain responsibility for providing dispute resolution as in paragraph 15 above.

Tribunal

20. As in paragraph 16 above, where references to the Tribunal are made these would be in terms of decisions, information and failures of the home education authority.

The child or young person is being educated in a school under the management of another education authority as a result of a successful placing request made to that authority by the parents or young person.

Placing requests

Sch 2 2(5)

21. The Act enables parents to make placing requests for their child with additional support needs to attend a school outwith the local authority in which the child lives, the home authority. Young people with additional support needs have the right to make placing requests on their own behalf. The placing request is made to an authority not responsible for the school education of the child or young person. Placing requests may be made whether or not children or young people have co-ordinated support plans.

s29(3)(a)

22. Where a child or young person is being educated outwith his or her home authority as a result of a successful placing request then responsibility for the child's or young person's school education transfers to the host authority who are then responsible for all relevant duties under the Act.

s1(3)

23. Decisions about additional support needs following a successful placing request are made by considering the provision, whether or not educational, which is additional to or otherwise different from the educational provision made generally for children or young people in schools under the management of the host authority which is responsible for the child's or young person's education.

Recovery of costs

Sch 3 3(4)

24. The Act also provides that references to a child or young person belonging to an area are to be construed in accordance with section 23(3) of the 1980 Act. The provisions of section 23(2) of the 1980 Act on contributions from the home education authority to the host education authority apply as they do within the framework of the 1980 Act. These are that where an education authority have provided school education, with or without other services, for any pupil, child or young person belonging to the area of some other authority, the education authority, may, if a claim is made recover from that other authority such contributions in respect of such provision as may be agreed between the authorities or as the Scottish Ministers may determine. There are two exceptions, however, relating to mediation and dispute resolution (see paragraphs 27 and 29 below).

25. Where the provision relates to additional support needs then it follows from paragraph 22 above that these needs are assessed against the educational provision generally made for children or young people of the same age in the host authority. It should be noted that following a successful placing request to a local authority there is no obligation on the authority to provide transport between the child's home address and the school in question. However, if the successful placing request is for an independent or grant-aided special school, or a school in England, Wales or Northern Ireland providing wholly or mainly for children or young people with additional support needs, then the authority must meet the necessary costs of the child's attendance at the school, including fees.

Mediation

s15(1)

26. Following a successful out of area placing request, parents and young people are able to access mediation from the host authority regarding that authority's functions under the Act. Also following the submission of an out of area placing request, parents or young people are able to access mediation from the potential host authority regarding the placing request.

s4 2009 Act

27. However, where a child or young person is being educated outwith the area in which he or she lives as a result of a successful out of area placing request, the host authority cannot recover the cost of providing any mediation services from the authority for the area in which the child lives (the home authority).

Dispute resolution

s16(1)

28. Following a successful out of area placing request, parents and young persons are able to access dispute resolution from the host authority in relation to the specified matters in the Regulations regarding authority's functions under the Act

s4 2009 Act

29. However, where a child or young person is being educated outwith the area in which he or she lives as a result of a successful out of area placing request, the host authority cannot recover the cost of providing any dispute resolution from the authority for the area in which the child lives (the home authority).

Co-ordinated support plans

s12(3A)

30. Following a successful out of area placing request for a child or young person with a co-ordinated support plan, the new host authority are under a duty to seek and take account of information and advice from the education authority from which the coordinated support plan was transferred as well as from any agencies or persons involved in providing support under the co-ordinated support plan prior to its transfer. This ensures that the new host authority, and the previous authority responsible for the school education of the child or young person, are in contact and that the new authority has all the information necessary from the old authority and the agencies previously supporting the child or young person. The aim is to make the transition from one authority to another as smooth as possible.

s10(1) and (5A)

31. The duty to keep under review any co-ordinated support plan prepared by the original home authority transfers to the new host authority following the successful placing request, since the host authority are responsible for the school education of the child or young person. The host authority must then review the co-ordinated support plan as soon as possible after the date of any transfer of the co-ordinated support plan from the home authority to the host authority (time limits for conducting this review will be specified in secondary legislation).

References to the Tribunal

s18(3) (da)

32. Where an education authority decide to refuse a placing request in respect of a place in a Scottish special school then that decision may be referred to the Tribunal. Similarly, the decision of an education authority to refuse a placing request in respect of a place in a school in England, Wales and Northern Ireland, which is a school making provision mainly or wholly for children or young people with additional support needs, may be be referred to the Tribunal. These references to the Tribunal may apply whether or not a co-ordinated support plan is involved.

s19(4A)
s19(5)(b)(i)

33. When hearing a placing request appeal in respect of a place in a special school, or a school in England, Wales or Northern Ireland, making provision wholly or mainly for children or young persons with additional support needs, whose managers are willing to admit the child, the Tribunal has the power to confirm the decision of the authority or overturn the decision of the authority. It has the power to specify when a successful placing request should commence and make any amendments to a co-ordinated support plan.

34. A decision of an education authority to refuse a placing request may be referred to the Tribunal where a co-ordinated support plan has been prepared, is being considered, or the education authority have decided that the child or young person does not require such a plan and that decision has been referred to the Tribunal. Where an authority are considering a co-ordinated support plan when no such plan has been prepared but it has been established by the education authority that the child or young person requires such a plan; or the education authority have advised the parents or young person that they intend to establish whether a co-ordinated support plan is required then in these circumstances the decision to refuse a placing request by either the education authority or by the education authority appeal committee will be considered by the Tribunal.

Repeat references to the Tribunal

s18(7)

35. References to the Tribunal on the decision to refuse a placing request can only be made once in each 12 month period unless any co-ordinated support plan has been reviewed in that period, or a Tribunal has ordered a coordinated support plan to be amended or prepared. Similarly, a period of 12 months will have to lapse before another reference can be submitted to the Tribunal regarding a decision to refuse a placing request to a Scottish special school or to a school in England, Wales and Northern Ireland which is a school making provision mainly or wholly for children or young people with additional support needs.

The Tribunal, sheriff and education authority appeal committee

s18(1)
and
Sch 2(7)(1A)

36. Where a child or young person has a co-ordinated support plan, is being considered for a co-ordinated support plan, or the education authority have decided that the child or young person does not require such a plan and that decision has been referred to the Tribunal, appeals regarding placing requests should be referred to the Tribunal rather than to the education authority appeal committee or the sheriff.

s18(3)(f)

37. A decision made by an education authority appeal committee to refuse a placing request may be referred to the Tribunal if, before the expiry of the time limit for appeal to the sheriff court (28 days), a co-ordinated support plan is involved or being considered.

s18(4)
Sch 2(7)(12)

38. If, at any time before the education appeal committee or sheriff has made their final decision on a placing request appeal, a co-ordinated support plan is being prepared, is being considered, or the education 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 appeal is to be transferred to the Tribunal. Any reference transferred back to the sheriff from the Tribunal will be treated as if it were an appeal made directly to the sheriff in the first instance thus ensuring the sheriff has the power to deal with such a reference.

s19(5) (ba) and (d)

39. While the Tribunal has the discretion to transfer a placing request decision back to the education appeal committee or sheriff where it has been decided that no co-ordinated support plan is required, it is anticipated that in the majority of cases the Tribunal will make a decision on the placing request reference.