Publication - Advice and guidance

Presumption to provide education in a mainstream setting: guidance

Published: 26 Mar 2019
Learning Directorate
Part of:
Education, Equality and rights

Guidance to education authorities on their duty to provide education in a mainstream setting unless certain exceptions apply.

Presumption to provide education in a mainstream setting: guidance
Annex A – Legislative and Policy Landscape

Annex A – Legislative and Policy Landscape

Key Legislation

Education is provided at pre-school, primary and secondary levels in both mainstream and special schools. The key pieces of legislation are set out below.

Education (Scotland) Act 1980

This Act requires Education Authorities to secure the provision of adequate and efficient education for their area, and sets out the rights and duties of parents in relation to their children's education, among other things.

Section 30 places a duty on the parent to provide efficient education suitable to age, ability and aptitude of the child either by causing him to attend a public school regularly or by other means.

Children (Scotland) Act (1995)

This Act regulates parental responsibilities and parental rights and establishes the responsibilities of service providers in matters affecting children's care and welfare. Local authorities must provide services designed to minimise the impact of disabilities on children and to allow them to lead lives which are fulfilling. Children's views must be sought and taken account of in key decisions that affect them.

European Convention on Human Rights

The UK is a party to the European Convention on Human Rights (ECHR), an international treaty to protect human rights and political freedoms in Europe. Article 14 covers prohibition of discrimination when exercising the right and freedoms under the ECHR and article 2 of the first additional Protocol sets out rights to education.

Human Rights Act 1998

This Act incorporates most provisions of the European Convention on Human Rights into Scots law.

United Nations Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child (UNCRC) is an international human rights treaty that sets out the civil, political, economic, social and cultural rights of children. Article 12 sets out right to respect the views of children and articles 28 and 29 set out educational rights for all children and young people.

As the UK has ratified the UNCRC, the Scottish Government has sought to incorporate the spirit of the convention in our own laws and our policy approach in Scotland. For example, section 1 of the Children and Young People (Scotland) Act 2014 requires Scottish Ministers to keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements, and if they consider it appropriate to do so, take any of the steps identified by that consideration.

UN Convention on the Rights of Persons with Disabilities (UNCRPD)

The UK is a party to the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Article 24 of this convention outlines the rights of disabled children and young people in education.

Standards in Scotland's Schools etc. Act 2000

This Act is about the provision of school education specifically relating to children's rights and the duty of the education authority. The education authority has a duty to make provision that is directed toward the development of the personality, talents and mental and physical abilities to their fullest potential. This also reflects article 29 of the UNCRC. Education authorities are also required to have regard to the views of the child in decisions that significantly affect them in the exercise of that duty.

Section 15 of the 2000 Act provides that a preschool and school aged child should be educated in a mainstream school or early learning and childcare establishment unless one of three circumstances set out in the section apply. The three exceptions are that it would not be suited to the ability and aptitude of the child; would be incompatible with the provision of efficient education or would result in unreasonable public expenditure. The section provides that it shall be presumed that those circumstances only arise exceptionally and that if one or more of them do arise, that the education authority may still provide education in a mainstream school but that they won't do this without taking into account the views of the child and of the child's parents.

Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002

This Act places a duty on education authorities, managers of grant- aided schools and the owners of independent schools to prepare a strategy to increase, over time, the physical accessibility of the school environment and the accessibility of the curriculum for pupils with disabilities and prospective pupils with disabilities.

Education (Additional Support for Learning) (Scotland) Act 2004

The Education (Additional Support for Learning) (Scotland) Act 2004 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 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 sets out the duties on education authorities to identify, provide for and to review the additional support needs of their pupils. Education authorities will plan for children's learning using a range of planning mechanisms including (non-statutory) individual educational plans and where there is significant support from education and another agency to meet the complex or multiple needs, a coordinated support plan under the 2004 Act.

The Supporting Children's Learning Code of Practice, to accompany the Education (Additional Support for Learning) (Scotland) Act 2004, supports the effective implementation of the above legislation. All of the sections of the code are relevant but particularly the sections on –

Meeting additional support needs

School attendance: Rights, responsibilities and placing requests

Co-ordinated support plan


Working with children and families

Resolving disagreements

Equality Act 2010

The Equality Act 2010 prohibits discrimination and harassment based on certain specified protected characteristics. It further places duties on public authorities to challenge discrimination, advance equality of opportunity and foster good relations for a range of protected characteristics. These protected characteristics are defined in the Equality Act as race, sex, disability, sexual orientation, religion or belief, age, gender reassignment, pregnancy and maternity, and marriage and civil partnership. The provisions of the Act for schools do not apply in relation to age and marriage and civil partnership.

It includes admission to school, the way education is provided, access to a benefit, facility or service, and exclusion. They must not treat pupils with disabilities less favourably and must take reasonable steps to avoid putting these pupils at a substantial disadvantage. The duty related to aids and services means that, since September 2012, schools (including independent schools) have to make reasonable adjustments.

Children and Young People (Scotland) Act 2014

This Act concerns the provision of services and support for children and young people; it includes sections related to the rights of children, children's services planning, early learning and child care, looked after children, adoption, children's hearings, detention in secure accommodation and consultation on certain proposals in relation to schools.

The 2014 Act includes direction on the Assessment of Wellbeing (section 96), specifically in relation to use of the 8 wellbeing indicators: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included. These requirements in relation to the Assessment of Wellbeing are referred to in other legislation and guidance and mean that wellbeing must be assessed in line with section 96 (see annex B).

The attached glossary provides definitions for different terms including mainstream schools and special schools.

Key Policy Developments

Key policy developments have included, but are not limited to:

Services have developed to provide parents, carers and young people on all of the rights and responsibilities in relation to additional support for learning:

Enquire provides independent and impartial advice for teachers, parents, local authorities and others caring for or working with children and young people with additional support needs.

Let's Talk ASN is an advocacy and legal representation service that provides help to parents, carers and young people in securing their rights.

My Rights, My Say is a children's service which provides advice and information, advocacy support, legal representation and a service to seek children's views independently about their support.

The following resources have also been referred to within the guidance –

The Self Evaluation Frameworks for Early Learning and Childcare and Schools -

How Good is Our Early Learning and Childcare

How Good Is Our School 4

How good is our early learning and childcare?: Correlation of quality indicators and themes between How good is our early learning and childcare? and How good is our school? (4th edition)

How Good is OUR School part 2

The Children and Young People's Commissioner Scotland 7 Golden Rules for Participation –

7 Golden Rules for Participation – Children

7 Golden Rules for Participation – Young People

7 Golden Rules for Participation – Accessible versions