Supporting Children's Learning - Code of Practice: statutory guidance - consultation

Context and Background

The Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act) provides the legal framework for identifying and addressing the additional support needs of children and young people who face a barrier, or barriers, to learning. The 2004 Act aims to ensure that all children and young people are provided with the necessary support to help them work towards achieving their full potential. It also promotes collaborative working among all those supporting children and young people and sets out the rights of children, young people and parents within the system.

This document, which provides statutory guidance on this legal framework, was most recently revised in 2017 following amendments made to the 2004 Act extending rights to children aged 12 and over. Since then, Scottish Ministers have committed to reviewing the guidance to ensure it remains accessible to users and fit for purpose in supporting the wide audience engaging with the legislation on a day-to-day basis.

The refreshed guidance aims to improve clarity, readability and navigation for all users. The consultation therefore seeks your views on these areas and on the guidance as a whole. The questionnaire seeking your views is provided as part of the consultation paper.

Under Section 27 of the 2004 Act, the Code of Practice provides statutory guidance on the duties of education authorities, appropriate agencies, and others in supporting children’s and young people’s learning. It sets out the provisions of the Education (Additional Support for Learning) (Scotland) Act 2004 and the secondary legislation that supports it.

Through the 2018-19 Programme for Government, Scottish Ministers committed to working with local government towards improving the consistency of support across Scotland for children and young people with additional support needs through improved guidance. In addition, the publication of the review of implementation of additional support for learning by Angela Morgan in 2019 set out a series of actions which sought to address the level of guidance and type of language used to support those navigating the additional support for learning system.

Further, in 2024, the Education, Children and Young People Committee (ECYP) launched an inquiry to consider how the 2004 Act was working in practice and the implementation of the presumption of mainstreaming policy. Recommendations were published in a report on 15 May 2024. In a response to the committee convener dated 9 July 2024 , the Cabinet Secretary for Education and Skills, Jenny Gilruth, committed to the following actions in relation to the refreshed guidance:

• To put beyond doubt education authorities’ duties in relation to confirming reasons for decisions made on placing requests and parents right of appeal to any decision.
• Strengthen guidance on transitions between primary and secondary schools to reflect the concerns of the committee.
• Address issues regarding the complexity of use of support plans including where certain plans are appropriate.

The refreshed guidance has been developed in partnership with key stakeholders through the Scottish Government’s Additional Support for Learning Code of Practice Working Group.

The refreshed guidance is organised into the following sections:

1. Introduction

2. Overview of the legislation

3. Understanding Additional Support Needs

4. Identifying and Assessing Needs

5. Planning and Providing Support

6. School Placements

7. Transitions

8. Resolving Disagreements

Good practice examples are not included within this consultation draft but will be included in the final refreshed guidance, to illustrate how the provisions of the 2004 Act can be applied in different situations to support consistent, lawful practice. We have asked respondents for their thoughts on areas where such examples would be particularly helpful. The final refreshed guidance will also include a comprehensive glossary of terms.

Education authorities and appropriate agencies (such as NHS Boards) must have regard to the code when exercising their functions under the 2004 Act. The code serves as a guide for effective decision-making but cannot dictate specific actions in individual cases. Education authorities and appropriate agencies should ensure that their policies, practices and information and advice services comply with the 2004 Act’s legal requirements.

It is important to read the refreshed guidance as a whole and not consider individual chapters in isolation from the entire document, the 2004 Act, or related secondary legislation.

Before providing consultation feedback, it is important users are aware that there are some issues which the guidance cannot resolve and may necessitate clarification through legal proceedings. This refreshed guidance is not intended to be a substitute for seeking appropriate legal advice regarding specific circumstances. Legal decisions ultimately rest with the courts and tribunals.

This is the fourth edition of the guidance and replaces all previous versions. Although there are no legislative changes in regard to the 2004 Act, the content has been updated with an aim to improve clarity, readability and navigation.