We are testing a new beta website for gov.scot go to new site

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

Listen

Chapter 7 Working with Children and Families

1. This chapter of the Code describes how children, young people and their parents can be successfully involved in education and learning and describes the Act's provisions on supporters and advocacy.

2. All children and young people should have the opportunity to make their views known about decisions which affect them. They should have the opportunity to express their opinions and have these opinions taken seriously. They should be encouraged to contribute to decision-making processes, the setting of educational objectives, the preparation of learning plans, reviews and transition planning. They need to know that what they have to say will be respected, listened to and, where appropriate, acted on.

3. Parents must also have the opportunity to be involved fully in discussions and decisions about their child's learning. Most parents want what is best for their children and have unique knowledge and experience to contribute to understanding their child's additional support needs. They, therefore, have a key role to play in their child's education and account should be taken of their wishes and the perspective they bring.

4. Professionals need to involve parents and take account of their views on their child's development and education. Partnership with parents is therefore central to ensuring that children and young people with additional support needs benefit fully from school education directed to the development of their personality, talents and mental and physical abilities to their fullest potential. The Act serves to strengthen further the involvement of children, young people and their parents in working with authorities to reach decisions which are best for children's and young people's learning.

Views of children and young people

2000 Act s2(2)

5. The 2000 Act places a duty upon education authorities, where they are responsible for the school education of a child or young person, to secure that the education is directed towards the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential. In so doing, the authority must have regard to the views of children and young people (if there is a wish to express them) in decisions that significantly affect their education.

s12(2) and (3)

6. The Act builds on the above duty by placing a duty on the education authority to seek and take account of views of children and young people as the authority consider appropriate under specific circumstances. These circumstances include where the authority are seeking to establish whether the child or young person has additional support needs and when they are determining what additional support the child or young person may require. The authority have some discretion in whether they seek the views of such children or young people. The purpose of this provision is, primarily, to avoid over-formalising the dialogue between professionals, teachers especially, and children and young people by requiring the authority to take account of, and record, children's and young people's views every time they are considering whether children or young people have additional support needs. All children should be encouraged to take part in personal learning planning processes and in discussing, monitoring and evaluating their learning. It is expected that, except under exceptional circumstances, children or young people who have additional support needs should have the opportunity to discuss their needs and the support to be provided to meet those needs.

s12(1), (2) and (3)

7. In addition to good practice in involving children and young people in decision making about their school education, under the Act an education authority must seek, and take account of the views of children and young people (unless the child or young person is not able to provide a view then the views of the parents are sought) when they are:

  • establishing whether a co-ordinated support plan is required
  • preparing a co-ordinated support plan
  • reviewing whether the child or young person still requires a co-ordinated support plan.

Expressing views

8. In order to express views, children and young people need to have experience of being asked for their views, being listened to, making some choices and having some influence over what they do. Schools and early years settings should create a climate where seeking children's views and encouraging participation in decision-making are part of everyday activities.

9. Some children and young people with additional support needs will be able to express themselves clearly and directly. All they may need are the opportunities and the encouragement to do so. Others may need support with communication or confidence to express their views. Very few will be unable to express a view at all.

10. The education authority may have to make specific arrangements to seek out the views of some children and young people, for example, children with complex communication support needs. They may need to make arrangements for those who require an interpreter; or whose first language is not English; or who have behavioural difficulties and are unwilling to co-operate. But it is just as important and relevant for these children and young people to have their views listened to as it is for those who can more easily express views. A range of approaches will need to be considered to determine their views including, for example, the use of alternative or augmentative communication systems, including signing, the use of interpreters, and engaging the views of others such as family members, foster carers, social workers and other professionals who know the child or young person.

Jamie is 13 years old and has depression. A meeting was convened to discuss his additional support needs but he made it clear that he would not attend. He agreed with his guidance teacher that a video could be made of them discussing what additional support he would find helpful.

Communication with children and young people

11. Good communication with children and young people is essential to enabling them to influence decisions made about their learning. This applies equally to education generally and at specific points related to co-ordinated support plans. There are many reasons why a child or young person may have difficulty in expressing their views. For example, communication with young children requires a range of different strategies which could include play, art, and the use of audio and video. Education authorities should take account of the good practice points at the end of this chapter.

12. Representatives of other appropriate agencies may be able to provide guidance and support to children and young people to help them express their views. They may also be able to provide guidance and support to other people involved in meetings on the best methods of communication. For example, a speech and language therapist may offer guidance on the appropriate level of language or communication method to use to ensure the child or young person understands and how best to facilitate and support their response.

13. When noting views, particularly where the child or young person has communication support needs, it is helpful to consider two factors. First, what the child or young person actually expressed, whether through speech, in writing, tape, sign or other form of communication such as facial expression or body posture. Second, what interpretation was made of the child's or young person's view and by whom. Both should be noted.

Taking account of views

14. Having sought the child's or young person's views, and recorded what these are, education authorities need to consider what weight to give to them. Taking account of these views does not mean education authorities have to accept and implement everything. At the same time, once sought and expressed, these views should not be disregarded and due weight should be given with consideration of the following:

  • the child's capacity to understand the information on which their views were based
  • the ability of the child or young person to express his or her own views
  • the child's or young person's understanding of the range of options
  • how well the people reporting the child's or young person's views know him or her.

15. It is important that a balance is struck between what a child or young person may want and what is realistic and appropriate. Where an education authority are unable to act on a child's or young person's views, reasons for this should be provided to them as appropriate.

Children and young people who lack capacity

s3

16. The Act provides for children or young people who may lack capacity to do something; for example, where they are incapable of doing something by reason of mental illness, developmental disorder, or learning disability, or are unable to communicate because of a physical disability. However, the Act makes it clear that children or young people should not be treated as lacking capacity by reason only of a lack or deficiency of communication where an alternative means of communication or interpretation, (human or mechanical), would assist the child or young person to make his or her views known.

17. The question of whether children or young people have the capacity to do something must be considered at each stage of their involvement. When asked for a view, the child's or young person's capacity should be judged at that point and in relation to their ability to express a view with regard to the particular circumstances. For example, it should not be assumed that because young people lack the capacity to request the authority to establish whether they have additional support needs that they lack the capacity to understand, or hold a view on, the support considered appropriate.

Young people who may lack capacity

18. Questions of capacity arise particularly for young people, that is, people over 16 who are not yet 18. Young people enjoy the same rights as parents under the Act unless they are considered to lack capacity to exercise their rights. It is, therefore, important to consider carefully whether in individual cases a young person may lack capacity. The Act, as amended, provides a test which authorities can use to determine whether a young person lacks capacity.

s26(1)
s26(1)(d)

19. The Act requires education authorities to publish and keep up-to-date certain information about a range of matters concerned with additional support needs including the authority's policy on provision for additional support needs (see Chapter 9). The Act, as amended, requires education authorities to provide all parents of all children with additional support needs (and young people with additional support needs), for whose school education the authority are responsible, with all the information authorities are required to publish.

s26(2A) (ii)

20. The Act, as amended, specifies that where the authority are satisfied that the young person lacks the capacity to understand the information which is published under the Act, that information should be sent instead to the young person's parent. The test to be used by authorities in establishing whether a young person lacks capacity relates to the young person's ability to understand the information published.

21. Clearly in applying the test the education authority will discuss the matter with the young person, where possible and appropriate, and certainly with those who know the young person well, such as the parents, and those who have the professional expertise to assess his or her capacity to understand the information published by the education authority under the Act.

s12(2)

22. The Act allows parents to speak and act for their child, or young person, where the child or young person lacks capacity to express a view. Nevertheless, it is important to continue to support the child's or young person's participation in decision-making, at an appropriate level, at the same time as seeking the views of their parents.

23. Those who are closest to the child or young person can often give an informed view on whether or not he or she can understand a particular matter. These could include parents, foster carers, teachers, allied health professionals or social workers. A speech and language therapy assessment of comprehension should inform this process where there are differences in opinion or significant uncertainty about comprehension. The education authority should consider all these views when being called on to make a decision about capacity. It is best to reach such decisions by consensus recording clearly why such a view was reached and how it was arrived at. Where a parent, child or young person disagrees with the authority's decision this should be recorded.

24. An education authority will also need to take note of the arrangements for decision-making under the Adults with Incapacity (Scotland) Act 2000 and any persons with legal powers in respect of an adult for whom the authority is providing school education. An adult under this legislation is someone aged 16 and over.

Good practice in communicating with children and young people

A child or young person may benefit from:

  • being given enough time to prepare and to go over the ideas and material to be discussed
  • being given information in a form which is readily understood
  • a teacher or other helper to help understand the meaning of key terms and concepts
  • a supportive communication facilitator to tease out the full meaning of all of the issues
  • specialised or new vocabulary (perhaps in sign or symbol form) in order to discuss a particular topic
  • support to go over ideas, perhaps on several occasions
  • help to understand outcomes and agreements.

Issues related to language:

  • if spoken English is not the child's or young person's first language, consider using an interpreter, preferably not a family member to avoid any conflict of interests
  • consider using a facilitator for those with language or speech difficulties
  • use appropriate alternative or augmentative communication systems such as visual aids and/or sign language for deaf and/or communication impaired children or young people
  • take account of any cultural preferences
  • take time to explain what decision has to be made, why it's important and how the child or young person can influence it.

Supporting parents

25. All professionals, schools, education authorities and appropriate agencies should seek actively to involve parents in their work with children. They should value parents' contribution and regard them as partners in their children's learning.

26. In good practice, authorities and other agencies will ensure that parents are fully aware of the processes for assessing and providing for children's needs, understand the planning mechanisms and are familiar with the support services available from the school, the education authority and from other agencies, including voluntary organisations. Wherever possible, a partnership approach should be extended to include older children and young people.

s26

27. Access to information and advice is central. The Act requires education authorities to publish information about certain specified matters including their policies, arrangements and the role of parents. They should ensure, in discharging their statutory information duties, that they use accessible language and take account of the child's, young person's and parents' rights to information and advice about the authority's provision for additional support needs. The authority should have a named contact person for additional support needs who can provide parents with information on the availability of supporters and advocates. Education authorities should also be aware of the valuable role the voluntary sector has in supporting parents and should aim to establish links and support effective working, wherever possible.

Supporters and advocacy

28. Supporters and advocates can help by making sure that a parent's or young person's view is understood, put across and taken account of in discussions where parents or young people feel unable or less confident to do so themselves.

s14

29. The Act provides young people and parents with the right to have a supporter or advocate present at any discussions or meetings with an education authority in regard to the authority's functions under the Act. Education authorities should, as a matter of good practice, make parents and young people aware of this right and how they can find out how to access such services.

30. The education authority must comply with the wish to have a supporter or advocate present unless the wish is unreasonable. Judgements about what an education authority may view to be unreasonable will depend very much on the particular circumstances being considered. An education authority may consider it unreasonable to include a supporter or advocate in discussions where the supporter or advocate is unable to represent the parent or young person appropriately. In such circumstances, the authority should provide the parent or young person with their reasons for taking this view.

31. Although a child does not have a right to have a supporter or advocate present, and the education authority does not have a duty to allow it, there is nothing to stop a child making such a request and an education authority agreeing to it where it would be in the interest of the child.

Supporters

32. A supporter can be anyone the parent or young person wants to nominate. A supporter could be a relative, friend, befriender or voluntary organisation worker or other person. The supporter could also be a professional working with the family provided there is no conflict of interest with that professional's duty under the Act or his/her responsibilities as an employee. A supporter can attend discussions with the parent or young person. The supporter may assist in a number of different ways, including:

  • acting as a sounding board for the parent in preparing for the meeting
  • taking notes so that the parent or young person can participate more fully in the discussions
  • suggesting points for further clarification, questions to ask or giving advice to the parent during the meeting.

Advocates

s14(1)(b)

33. The Act allows for a parent or young person to appoint a person to conduct all or part of any discussion with the education authority or make written or other representation to the authority on their behalf. This person, known as an advocate, can come from a range of backgrounds, including:

  • someone who has acted, or is already acting, as a supporter to the parent or young person - the parent or young person may wish the supporter to speak on his or her behalf
  • a person not trained in advocacy but who is aware of education and other legislation and/or the needs of the child or young person who has additional support needs
  • a voluntary organisation which need not be an advocacy organisation
  • a formal advocacy service or agency, with trained advocates, possibly operating to its own guidelines or code of practice.

34. The main objectives of an advocate should be to speak up on behalf of the parent or young person and to represent the parent or young person at discussions.

35. Education authorities do not have a duty to provide or pay for a supporter or advocate. They should include, in their information materials for parents, details about the right to an advocate or a supporter, and how parents or young people can find out what services are in their area.

The Tribunal

s14A

36. The Act, as amended, requires the Scottish Ministers to make an advocacy service available on request and free of charge to support parents and young people in Tribunal proceedings. By advocacy service in this context the Act means ' a service whereby another person conducts discussions with or makes representations to the Tribunal or any other persons involved in the proceedings' on behalf of the parent or young person. It is important to note that the service is available to provide support at the actual Tribunal hearing and not at any other meeting or discussion with the authority or other persons. Also, the service becomes available once a parent or young person has made a reference to the Tribunal. However, there would be discussions or meetings between the parent(s) or young person and the advocate prior to appearing before the Tribunal.

37. As a matter of good practice, education authorities should inform parents about the advocacy service when they become aware that a parent or young person is considering making a reference to the Tribunal. They should also refer to the service in the information they publish about additional support needs under the Act.

38. Parents will be able to obtain information about how to access the advocacy service from the Tribunal secretariat. The arrangements for providing the service have still to be finalised and further information about it will be available later in the year.

Good practice in communicating with parents

39. Education authorities should take account of the following good practice points when working with parents.

Professionals should:

  • acknowledge and draw on parental knowledge and expertise in relation to their child
  • consider the child's strengths as well as areas of additional need
  • recognise the personal and emotional investment of parents and be aware of their feelings
  • ensure that parents understand procedures, are aware of how to access support and are given documents to be discussed well in advance of meetings
  • respect the validity of differing perspectives and seek constructive ways of reconciling different viewpoints
  • cater for the differing needs parents may have, such as those arising from a disability, or communication and linguistic barriers.

Information should be:

  • clear and understandable and avoid jargon
  • provided easily in accessible formats
  • readily available and provided automatically without a charge and without a fuss.

Communication works well when:

  • people have the interpreters they need
  • someone in authority takes responsibility for keeping parents up-to-date
  • people are told what has been happening between meetings
  • any information provided by parents is acknowledged
  • formal references to statutory procedures are avoided.

Effective working relationships develop when:

  • contact with parents is sensitive, positive, helpful and regular
  • parents feel included and are encouraged to contribute to discussions
  • positive, clear and easily understood language is used
  • parents are involved and processes and roles are explained from the beginning
  • parents are told what to expect and the next steps
  • times of meeting take account of parents' availability.

Meetings work best when:

  • parents are asked what times and places suit them best, taking account of any access need or family responsibilities
  • notes from meetings, and any papers to be considered, are sent out in good time
  • parents are invited to add points to the agenda, at the same time as everyone else
  • people attending are aware of their roles and the roles of others and they understand the child's or young person's additional support needs
  • there are no hidden issues, and no last minute surprises
  • decisions are made when parents are at the meeting, or agreed with them before meeting takes place, not after the meeting has closed, unless further consultation takes place with them
  • ample time is given to allow people time to raise concerns, so that decisions are not rushed.

Identifying the way forward works well when:

  • all views are taken on board - including those of the child or young person
  • people are interested in learning from each other
  • people show an interest in general family priorities and take them on board
  • services are identified in agreement with the family and are responsive to individual needs.

Accountability and involvement:

  • who is responsible for what is clearly defined and understood
  • parents concerns are responded to quickly
  • decisions are open to scrutiny
  • parents have a clear point of contact who can answer questions, make decisions and ensure that agreed actions are taken
  • people do what they agreed within the timescale committed to - if a decision is likely to take time, parents are told and given some idea of when a decision is likely.