Guidance on assessing capacity and considering wellbeing: analysis of consultation responses

Analysis of consultation responses on guidance for education authorities and school staff on assessment of capacity and consideration of wellbeing of children.

Chapter 2 Children's Rights

Respondents were asked Is the information provided in Chapter 2 appropriate. They also had the opportunity to suggest potential improvements.


Option Total Percentage
Yes 11 52.38%
No 6 28.57%
Don't Know 0 0%
Did not answer 4 19.05%

As reflected in the results above, the majority of responses with regards to the introduction were positive, for example "The information provided is appropriateā€¦."

There were however opportunities for further clarification within Chapter 2. Which included:

Clarity regarding the assessment process

  • With regards to a query as to how requests can be made, it was clarified that the 2004 Act (as amended) requires that requests are made in writing or another permanent form, and are able to be referred back to.
  • In response to queries on timescales it was added that there is no timescale set in statute for these decisions to be completed, but as this decision is made in relation to a child who in almost all cases will already be known to the education authority through its schools, this decision should be able to be made quickly.

Clarity regarding Children and Parental rights

  • The support available to parents and children has been clarified, referencing the Scottish advice service for additional support for learning, Enquire, in this chapter.
  • With regards to queries about potential disagreements when using rights and whether children's/parent's rights could be used in parallel, it was added to this chapter that, 'In practice, families will require to consider who will use their rights in the circumstances that rights are being prepared to be used. It is not intended that eligible children and their parents can use their rights on the same issue at the same time, or indeed consequentially (to overturn the earlier effect). It is therefore essential that a decision is taken about whether the eligible child's rights will be used or the parent's rights will be used in each circumstance. An agreement should be reached about whose rights should be used, particularly in the circumstances where there is disagreement between the eligible child and their parent.'

General clarification

  • The list of rights that have been extended to eligible children includes making 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 for Scotland. The regulations specified (The Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005) have now been referenced.


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