Chapter Three Assessment of Capacity
Assessment of capacity and particular rights
19 The new rights for children are subject to safeguards in the form of an assessment of capacity and a consideration of adverse impact on wellbeing of an individual child. Capacity, is defined broadly in the Act, as a child having "sufficient maturity and understanding". This is different from adults and young people, who are presumed to have capacity, unless assessed as lacking capacity.
20 As indicated in paragraph 12, education authorities are required to assess the capacity of children who wish to use their rights. Education authority staff including teachers are best placed to decide on a child's capacity, as they work with and know the child well. They will, as a result of their skills, experience and understanding of the needs of the child, be able to consider and provide evidence as to whether or not a child has capacity, in relation to the specific rights that the child is proposing to use.
21 Importantly, there is not a single decision on the child's capacity which applies to all of the rights within the Act. It relates to the particular right which the child is proposing to use, at the time they are proposing to use it. Therefore, the child's maturity and understanding to use their rights should be assessed for the particular right they are seeking to exercise at a given time. The decision about the child's capacity in relation to the use of one right should not be used to reach a conclusion in relation to any other right, within the Additional Support for Learning Act, or considerations of capacity under other legislative frameworks. When carrying out an assessment of a child's maturity and understanding, the education authority can take into account the following factors. This information is not exhaustive, and the child and those working and living with the child may use any evidence they consider appropriate to establish maturity and understanding:
- the child's age and stage: to exercise their rights, a child will have attained 12 years of age whether at primary or secondary stages.
- sufficient maturity: a child's maturity will be evidenced by progress within health and wellbeing and its key features of healthy living and relationships, and in approaches to personal planning, assessing risk and decision making.
- sufficient understanding: the skills and experiences  that children have gained as part of their learning, whilst working towards curricular levels, (including those at Curriculum level 2 and 3) can be used as evidence of whether the child will have sufficient understanding to exercise their rights.
- support from an adult who knows the child well. The assessment by the teacher and school staff (whether in primary, secondary or special school) who knows the child, will be based on a wide variety of sources of evidence, including observing day-to-day learning, learning conversations and/or planned periodic holistic assessment. Those working closely with the child will have knowledge of whether the child is likely to have understanding, given their experiences of working with the child concerned, and whether any supports or adjustments which have previously been made to support the child, will also be required in relation to their use of their rights.
22 Brought together, information from these sources will provide a rounded picture of the child's experiences and skills which will form a rounded picture of evidence to support the education authority's decision on capacity.
23 The Supporting Children's Learning Code of Practice (Third Edition) 2017 sets out the questions which should be used to decide capacity in each of the areas where new rights are enacted. The assessment of capacity is in the context of the particular right a child is exercising. When assessing whether a child has sufficient maturity and understanding, the following relevant questions are useful. For ease of understanding these are set out below:
Does the child have sufficient maturity and understanding to carry out an action (i.e. to act to use the right)?
Where that particular right is in relation to making a decision - does the child have sufficient maturity and understanding to:
- make the decision,
- communicate the decision,
- understand the decision and its implications for themselves, and
- retain the memory of the decision?
In relation to rights relating to advice and information, or a co-ordinated support plan, does the child have sufficient maturity and understanding to understand the information, advice or plan?
In relation to rights to express their views does the child have sufficient maturity and understanding to express the view?
24 It is not intended that every question should be answered. The choice of question to be used will be informed by the right which the child wishes to use (i.e. if the child (aged 14) wishes to exercise their right to consent to information being shared as part of post-school transition planning - this is a decision and the second question would be used). Only questions which directly relate to the use of the right the child is planning to use should be used (i.e. in the example above, the first question would not be used, as there is no 'action' associated with the decision (the education authority officer would share the information not the child themselves).
25 Taking such factors into account and by answering the relevant questions, in almost all instances, those working with the child, e.g. the class teacher, pastoral care staff or support teacher, will have sufficient robust evidence to assess the child's maturity and understanding to exercise a particular right in context, and to inform the process of decision making. It is not intended that this should be a bureaucratic exercise, it is intended to confirm what is already known about the child. In the rare circumstances where there is not a clear conclusion, or it is not felt that sufficient information is available to reach a conclusion, the assessment could be supported through the advice and guidance of education authority officials, such as an educational psychologist.
26 It is recognised that Looked After Children who have recently moved placement may not be well known by their school. Information to support decision making should be drawn from information which is known about the child, from their child's plan, and from those who know them well outside of school, for example, their social worker.
Further support through quality assurance and moderation
27 As described above, there is a wide range of assessment information which will support those working in schools and education authorities in reaching conclusions, as to whether or not a child has capacity and sufficient maturity and understanding. However, it is recognised that in a very few instances and with specific circumstances, perhaps where a child has not had similar experiences, i.e. they may have made decisions before, but not decisions of the same type or requiring the same preparation, there may continue to be challenges in reaching a conclusion on a child's capacity to exercise a particular right. Schools can develop approaches to quality assurance, moderation of such decisions, and recording and reporting on their assessment activities. In these circumstances, a specific assessment  by education colleagues, including education authority officials, may provide further clarification on the decision.
Timescales for decision
28 There is no timescale set in statute for these decisions to be completed. 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. It is not intended that a child's wish to use their rights should be unnecessarily delayed. If a clear decision is not able to be reached quickly, the decision to take additional support to reach a decision must be made expeditiously.
Decision on capacity
29 When an education authority reaches a decision on whether or not a child has capacity they must inform the child and their parent or carer of their conclusions, as soon as reasonably practicable after the decision is reached.
30 In the circumstances where the child or their parent does not agree with the outcome of these considerations, they may refer this to the Tribunal for consideration. Where it is considered that the child is not considered to have capacity and there is adverse impact on wellbeing, the education authority (and the child) may not carry out the right.
Where a decision is reached that a child does not have capacity
31 In the circumstances where a child does not have sufficient maturity and understanding as described above, they would be considered to lack capacity in relation to that (or those) rights. Where it is assessed that the child lacks sufficient maturity and understanding to exercise that right, the education authority (and the child) may not exercise the right. Children's maturity and understanding will change, and/or progress over time, and education authorities will take account of such changes towards capacity and adverse impact and wellbeing, as children make further progress within Curriculum for Excellence. Further information can found in chapter 5, 'Assessment of Change in Circumstances.'
Capacity of young people
32 A young person aged 16 or over in school education would be considered to lack capacity to use a right, only if they do not have sufficient understanding to use it. There is no requirement to consider whether there may be adverse impact on wellbeing in relation to young people.
Capacity and communication needs
33 A child or young person should not be treated as lacking capacity because of a communication need, which can be overcome by human, electronic or mechanical aid (whether of an interpretive nature or otherwise).
Case study - assessment of capacity - communication needs (see paragraph 33) and decision making
Eilidh is 15 and attends a special school. She is making good progress in her broad general education and is experiencing learning in some experiences and outcomes at Second level. She does not attain and achieve the outcomes at this level, though she has attained a few outcomes in literacy and numeracy at First level. Eilidh has communication needs and uses a voice output aid that helps her communicate. Eilidh, her parents and her teachers are skilled at communicating through the vocal aid.
Eilidh's parents have been invited to a review to inform Eilidh's senior phase options and continue post-school transition planning. Eilidh's parents let her know about the review. Eilidh tells them that she wants to attend the meeting and be part of the discussion. As part of that discussion Eilidh will have to decide whether she wishes information about her to be shared with other agencies to support transition planning.
The education authority assess whether Eilidh has the capacity to make the decision on information being shared about her, including communicating the decision. They conclude that as she routinely uses a communication aid this will be the case in this discussion also, and that she is able to satisfy all of the criteria on decision making (see paragraph 23 for questions). The authority also consider whether Eilidh making the decision would have an adverse impact on her wellbeing. Having considered evidence against safe, healthy, achieving, nurtured, active, respected, responsible, and included, they conclude that there will be no adverse impact on her wellbeing as a result of making the decision. The authority email both Eilidh and her parents with the outcome of their decision and consideration.
At the review meeting they all discuss whether Eilidh is likely to leave or stay on at school, and her thoughts about her plans post-school. In the meeting, Eilidh indicates that she wants to stay on at school for her final year and then to go to college. It is agreed that Eilidh will stay in school for her final year and that transition planning will now focus on preparing Eilidh for college. As part of this, Eilidh is asked whether she is agrees to information being shared about her with social work services and the college she plans to attend to support planning. Eilidh makes the decision that she is content for the education authority to share information with those other agencies in order to support planning. The education authority transitions officer gets in touch with social work services, and the college to consider support for Eilidh whilst she is at college, and the planning process then continues.