Purpose of the Act
1. The Education (Additional Support for Learning) (Scotland) Act 2004 ("the Act") provides the legal framework which underpins the system 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 also promotes collaborative working among all those supporting children and young people and sets out parents' rights within the system. The Act has been subsequently amended by the Education (Additional Support for Learning) (Scotland) Act 2009 ("the 2009 Act").
Purpose of the code
2. This code replaces the original code of practice published in 2005 in order to take account of the 2009 Act. It explains the duties on education authorities and other agencies to support children's and young people's learning. It provides guidance on the Act's provisions as well as on the supporting framework of secondary legislation. The code uses the term "the Act" to include, where appropriate, the secondary legislative provisions and includes features of good practice on how these can be applied. It also sets out arrangements for avoiding and resolving differences between families and education authorities.
Status of the code
3. Education authorities and appropriate agencies, such as NHS Boards, are under a duty to have regard to the code when carrying out their functions under the Act. The code is designed to help them make decisions effectively but it cannot be prescriptive about what is required in individual circumstances. Education authorities and appropriate agencies must ensure that their policies, practices and information and advice services take full account of the legal requirements of the Act. The code includes brief case studies and examples of good practice to illustrate some of the processes involved in applying the Act's main provisions. These do not offer definitive interpretations of the legislation since these are ultimately a matter for the courts.
4. The code is intended to explain the principles of the legislation and to illustrate how the law might apply in certain situations. It is important to an appropriate understanding of this framework that this code of practice is read as a whole. Individual chapters should not be taken out of the context of the whole code or read in isolation from each other and the Act and the related secondary legislation. There are some issues which the code cannot resolve and which must await the authoritative interpretation of the courts. The code is not intended to be a substitute for taking appropriate advice on the legal implications of particular situations.
Other legislation and policy
5. The guidance in this code should be read alongside other legislation and policy where appropriate. For example, Curriculum for Excellence, Getting it right for every child ( GIRFEC) and Hall 4 1 have implications for education authorities' and other agencies' support for learning strategies. In particular, Curriculum for Excellence is a curriculum for all and this includes explicitly children and young people with additional support needs. The Act, with its focus on ensuring that children and young people receive the help they need to benefit from education, supports this inclusive ethos 2 .
6. While the guidance in the code outlines links with other legislation and policy, the main purpose of the code is to explain the principles of the Act and how the law may apply in certain situations. While Curriculum for Excellence and Getting it right for every child are major policy drivers in Scottish education they are not statutory provisions. They are referred to at points in the code to describe the overall context within which the Act applies but they do not themselves impact directly on the legislative provisions of the Act. In particular, it is beyond the scope of the code to provide a full account of these other policies and their impact on the lives of children and families. A summary of other relevant legislation and policy issues is provided at Annex A.
Who should read the code?
7. Education authorities and agencies involved in advising or supporting children and young people with additional support needs and their families should encourage and support their employees in gaining knowledge of the content of the code and understanding of its application in their day-to-day work. Parents and young people may wish to refer to the code for information and advice on exercising their rights. However, specific guidance is available for them from Enquire, the helpline funded by the Scottish Government which provides information and advice on additional support needs.
8. Examples of professionals across agencies who are under a duty to have regard to the code, or others who may find it useful when carrying out duties under other legislation, include:
Multi-agency planners: policy officers, planners and service managers working in children's services planning networks across education, health, social care, further education and training.
Education: education directorate, head teachers, teachers, classroom assistants, educational psychologists, staff in schools and nursery provision, including partner providers for pre-school education.
Early years and childcare: early years practitioners, early years workers in family centres, staff delivering out-of-school provision.
Health: health visitors, public health nurses, community child health teams, paediatricians, physiotherapists, occupational therapists, speech and language therapists, other allied health professionals, clinical psychologists, and medical practitioners in paediatrics, general practice and child and family psychiatry.
Social work: social workers, residential child care staff, support workers, adoption and foster care service staff and social workers with responsibility for child protection and looked after children.
Voluntary sector: staff working in the whole range of children's services.
Other agencies: professionals in other agencies who may be involved in integrated assessment teams, for example, childcare fieldworkers, youth workers, Children's Reporters, police, schools/community liaison team, community workers, staff working in Skills Development Scotland (careers services) and in higher and further education.
9. A young person has the same meaning as under the Education (Scotland) Act 1980 (referred to here as "the 1980 Act") which is a person who has attained the age of 16 years and who is not yet 18 years of age. Throughout the code the term young people is used instead of young persons, for ease of understanding.
10. The term "parent" has the same meaning as in the 1980 Act and includes "guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has care of a child or young person." The term parent as well as meaning a child's or young person's genetic father or mother also includes others exercising parental responsibilities in respect of the child or young person.
11. "Education authority" is defined in the 1980 Act as a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994. In practical terms, the education authority and the local authority are the same entity. In general, the code refers to an education authority when considering a local authority's education functions and to a local authority in respect of functions other than education ones such as social work services.
12. The Act applies generally to pre-school provision, which is under the management of the education authority, and made for prescribed pre-school children (see glossary). This provision also can include provision where an education authority have an arrangement with another provider; for example, where the authority have 3 arranged for children to attend a private nursery under a partnership agreement. In certain circumstances, described in chapter 3 below, the education authority have a duty to make provision for certain disabled children under the age of 3 years.
13. The meaning of disability, used in the code, is as defined in the Disability Discrimination Act 1995 (c50), section 1(1). This states that "a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
14. The Act refers to looked after children within the meaning of section 17(6) of the Children (Scotland) Act 1995 which covers children looked after at home and children looked after away from home.
- Looked after at home: where the child or young person is subject to a supervision requirement with no condition of residence through the Children's Hearing system. The child or young person continues to live in their normal place of residence (i.e. often the family home).
- Looked after away from home (i.e. away from their normal place of residence): where the child or young person is subject to a supervision requirement with a condition of residence through the Children's Hearing system, or is provided with accommodation under section 25 (voluntary agreement) or is the subject of a Permanence Order (Part 2 of the Adoption and Children (Scotland) Act 2007)). The child or young person is cared for away from their normal place of residence, e.g. in a foster care placement, residential/children's unit, a residential school, a secure unit or a kinship placement.
- In addition to the above, a child or young person may be the subject of a warrant instigated by a Children's Hearing or Sheriff Court. These are short term measures where the child or young person is considered Looked after for the duration of the warrant.
15. A glossary of terms used is provided at the end of the code.
References in the code
16. The code refers to the Act and its associated regulations. References to the Act are in the margin of each page, for example s1(1)(a) refers to Section 1, subsection 1(a). References to the titles of other legislation are also in the margin of each page.
17. Further information on the code of practice is available from:Support for Learning Division
Tel: 0131 244 0946
Fax: 0131 244 0834