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

1. Overview of the legislation

What this chapter covers

1. This chapter provides an overview of the main provisions of the 2004 Act, including 2009 and 2016 amendments. It does not cover all of the 2004 Act’s provisions and should not be considered an authoritative legal interpretation, which can only be provided by the courts and tribunals.

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

2. The 2004 Act establishes a legal framework to support children and young people in their school education, along with their families. This framework is centred on the concept of additional support needs. This is a broad, inclusive term for children or young people who, for any reason, need additional support, whether temporarily or long term, to fully participate in and benefit from their education and learning^[7].

The definition focuses on the educational needs of the child or young person and does not require a formal diagnosis.

3. To help illustrate the wide range of circumstances that may lead to children and young people requiring additional support, here are some examples:

• Health or Disability Related Factors:
  • Sensory impairments (e.g., hearing or vision difficulties).
  • Learning difficulties (e.g., dyslexia, processing disorders).
  • Physical disabilities requiring adaptations or assistive technology.
  • Developmental disabilities (e.g. cerebral palsy, Down Syndrome).
  • Mental health challenges (e.g., anxiety, depression, eating disorders).
• Social and Emotional Factors:
  • Children and young people who have experienced trauma or loss.
  • Children and young people experiencing bullying.
• Family Circumstances Related Factors:
  • Children affected by family breakdown, domestic abuse, or parental imprisonment.
  • Young carers balancing school with caring responsibilities.
  • Looked after and care experienced children and young people.
  • Pupils whose learning is disrupted due to frequent school moves (e.g., Armed Forces families, Gypsy/ Traveller families, refugees).
• Learning Environment Related Factors:
  • Highly able learners needing additional challenge.
  • Children with English as an additional language (EAL).
  • Lack of accessible facilities or access to appropriate resources.

4. This list is provided only for guidance purposes and is not exhaustive. Not all potential circumstances giving rise to additional support needs are listed above and not all children captured by these circumstances will necessarily require additional support.

5. The provisions of the 2004 Act apply to any child or young person who requires additional support to benefit from education, regardless of whether the specific situation is listed here. Rather than fitting children or young people into predefined categories, the professionals involved in their support should:

Consider how the factors identified affect a child’s ability to engage with education. Adopt a personalised approach to identifying and addressing their needs. Ensure the support offered is inclusive and flexible.

6. It should be noted that the 2004 Act automatically considers all looked after children and young people to have additional support needs unless the education authority determines otherwise^[8]. This also applies to children over the age of 2 who are looked after, in kinship care, or have a guardian.

7. Education authorities must also assess whether each looked after child or young person for whose school education the authority is responsible requires a co-ordinated support plan^[9].

8. Looked after children under school age who are not eligible pre-school children do not qualify for a co-ordinated support plan, as they are not yet receiving school education. However, once they begin school education (e.g., in an early learning centre), and the education authority determines that they have additional support needs, the authority must consider whether they require a co-ordinated support plan. At the point of reaching school age, a child may already be on either a single agency or multi-agency child’s plan under the Getting it right for every child approach.

9. Getting it right for every child is both an approach and framework used by services across Scotland to improve and uphold the wellbeing of children and their families.

10. The Getting it right for every child framework enhances the 2004 Act by encouraging early intervention and preventative support, promoting a holistic view of well-being using eight indicators: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included, and by supporting the development of a child’s plan for children with additional support needs^[10].

Rights of children, young people, and parents

11. In 2004 the Act introduced new rights for parents and young people. The 2016 Act extended certain of these rights to eligible children (aged 12 or older with the capacity to exercise their rights).

12. Parents and young people have the full range of rights. Eligible children share most of these rights except for placing requests and mediation. These rights include:

• Requesting the education authority to assess whether the child has additional support needs.
• Receiving information and advice about the child’s additional support needs.
• Requesting specific types of assessments or examinations to evaluate the child’s additional support needs at:
  • Any time.
  • When the education authority initiates an assessment to establish whether a child or young person has additional support needs, or requires a co-ordinated support plan, or reviews an existing plan.
• Requesting mediation services (eligible children cannot directly request mediation but must have their views considered as part of the process).
• Using dispute resolution arrangements^[11] for matters specified in regulations (excluding matters eligible for consideration by the First-Tier Tribunal for Scotland, Health and Education Chamber (“the Tribunal”)).
• Making a placing request:
  • To the education authority to place the child or young person in a specified school which may include an independent or grant-aided special school if their child has additional support needs (eligible children cannot make placing requests).
  • To another education authority for the child to attend a school managed by that authority (eligible children cannot make placing requests).
• Receiving outcomes of requests under the 2004 Act, including:
  • Reasons for refusals.
  • Information on any review/ appeal rights, such as through mediation, dispute resolution, Tribunal referrals or education authority appeal committees (for placing requests that do not involve a co-ordinated support plan and are not for a special school).
• Requesting the education authority to assess whether the child needs a co-ordinated support plan or to review an existing plan.
• Receiving a copy of the co-ordinated support plan, including any amendments and having their views taken into account and recorded in the plan.
• Referring specified matters to the Tribunal, including:
  • Matters relating to co-ordinated support plans.
  • Appeals against the refusal of placing requests to special schools.
  • Failures by an education authority regarding post-school transitions.
• Having a supporter or an advocate accompany them to present their case at meetings with the school or education authority, as well as at Tribunal hearings.

In support of this:

• Parents and young people can access free independent advocacy and legal representation.
• Eligible children (12-15 year old) have access to a dedicated children’s service, free of charge, that provides information and advice, advocacy services, legal representation, and independent support to express their views^[12].

Determining who exercises rights

13. The 2016 Act granted eligible children (those aged 12 or over with the capacity to make decisions) similar rights to parents and young people regarding additional support for learning in school education. These rights empower children to be active participants in their education.

14. In practice, families must decide whether the parent or the eligible child will exercise rights in a certain situation. It is not intended that they can both exercise their right on the same issue at the same time, or used by one party to overturn a previous decision made by the other. A clear decision should be made in each case about who will exercise their rights. However, it is important to note that, under section 3C of the 2004 Act, the parents’ wishes may, in certain circumstances, take precedence if a child does not wish to exercise their right and does not wish their parents to do so.

15. In circumstances where parents may not be able to exercise their rights on behalf of their child, the children’s service will support eligible children who wish to exercise their rights independently. Looked after children and young carers are likely to benefit most from this service and should be encouraged and supported to use their rights whenever possible.

Assessment of capacity and wellbeing^[13]

16. Safeguards are in place to ensure that eligible children can exercise their rights only if they have:

• Capacity: meaning they have sufficient maturity and understanding to exercise their rights.
• There is no adverse impact on their wellbeing: meaning that exercising their rights would not negatively affect their emotional, physical, or social wellbeing.

17. Each time a child seeks to exercise a right (or when an education authority takes action regarding them), the education authority must assess both of the above. Education authorities must make evidence-based decisions on the matter and will rely on a range of assessment information to support their decisions.

Assessing Capacity

18. Professionals may assess capacity based on:

• The child’s age and stage of learning.
• Literacy and numeracy progress.
• Observations from teachers, support staff, or allied health professionals.
• Ability to make and understand a decision and its consequences.

19. In circumstances where a child lacks capacity, the parents may act on their behalf.

20. Where applicable, education authorities must also consider any legal powers granted under the Adults with Incapacity (Scotland) Act 2000.

Assessing Wellbeing

21. Education authorities must consider whether using a right might negatively affect a child’s wellbeing.

22. The impact on the child’s wellbeing is considered in regard to the statutory wellbeing indicators – Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included^[14]. These are set out under Part 18 of the Children and Young People (Scotland) Act 2014 (Assessment of Wellbeing)^[15].

23. Within the Getting it right for every child approach, the National Practice Model brings together the My World Triangle, Resilience Matrix, eight wellbeing indicators and the four contexts for learning within Curriculum for Excellence, to support overall assessment of wellbeing.

24. Further information on assessing capacity and wellbeing is available in the additional non-statutory guidance "Extending Children’s Rights – Guidance on the Assessment of Capacity and Consideration of Wellbeing"^[16].

Appealing capacity and wellbeing decisions

25. Following an assessment of capacity and wellbeing the child and their parents must be informed of the conclusions of these considerations.

26. If a child or their parents disagree with the education authority’s decision on capacity or wellbeing, they can refer the case to the Tribunal. The Tribunal has the authority to confirm or overturn the education authority’s decision. Further details on the Tribunal process are provided in chapter 7.

UN Convention on the Rights of the Child^[17]

27. The 2004 Act is a key legislative mechanism for realising the rights set out in the UN Convention on the Rights of the Child (UNCRC) within the Scottish education system. It puts inclusive education into practice by ensuring tailored support, legal protections, and child-centred planning processes.

28. The 2004 Act and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the 2024 Act)^[18] interact to strengthen the rights and protections of children and young people who require additional support with their learning.

29. Both Acts are underpinned by the principle that children are rights-holders, and that public bodies have a duty to uphold those rights.

30. The 2024 Act, gives children the right to education without discrimination, and ensuring their voices are heard in decisions that affect them.

31. Together, they offer a robust framework for promoting inclusive education, participation, and equality for all children in Scotland.

32. The 2004 Act directly engages with several key UNCRC articles (summarised in plain language)^[19]:

Article 2 (non-discrimination)

“The Convention applies to every child without discrimination, whatever their ethnicity, sex, religion, language, abilities or any other status, whatever they think or say, whatever their family background.”

The 2004 Act requires education authorities to identify and address the barriers children and young people face in education, whatever the reason (disability, health, family circumstances, socio-economic disadvantage, or other factors). It requires support tailored to individual needs, promoting inclusive education regardless of background.

Article 3 (best interests of the child)

“The best interests of the child must be a top priority in all decisions and actions that affect children.”

The 2004 Act requires for decisions and plans to be made with the child’s educational progress and wellbeing at the centre.

Article 5 (parental guidance and a child’s evolving capacities)

“Governments must respect the rights and responsibilities of parents and carers to provide guidance and direction to their child as they grow up, so that they fully enjoy their rights. This must be done in a way that recognises the child’s increasing capacity to make their own choices.”

Under the 2004 Act, parents and carers have the right to be actively involved in decisions affecting their child’s support in education. The 2004 Act also recognises the right of children to be involved in the same way, granting eligible children most of the rights it provides parents and young people (16+).

Article 12 (respect for the views of the child)

“Every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously. This right applies at all times, for example during immigration proceedings, housing decisions or the child’s day-to-day home life.”

The 2004 Act actively encourages, and in certain circumstances requires, education authorities to seek and take into account children’s views and grants eligible children (where capacity is established) most of these rights except for placing requests and mediation. Young people (16+) have the full range of rights.

Article 23 (children with disabilities)

“A child with a disability has the right to live a full and decent life with dignity and, as far as possible, independence and to play an active part in the community. Governments must do all they can to support disabled children and their families.”

The 2004 Act is intended to ensure that all children and young people, including those with disabilities, are supported to fully benefit from education.

Article 28 (right to education)

“Every child has the right to an education. Primary education must be free and different forms of secondary education must be available to every child. Discipline in schools must respect children’s dignity and their rights. Richer countries must help poorer countries achieve this.”

The 2004 Act is fundamentally about removing barriers to learning, ensuring equal access to education for children who would otherwise struggle without additional support. Education authorities must identify and meet additional support needs proactively.

Article 29 (goals of education)

“Education must develop every child’s personality, talents and abilities to the full. It must encourage the child’s respect for human rights, as well as respect for their parents, their own and other cultures, and the environment.”

The additional support for learning framework is structured to enable children to achieve their fullest potential, not just in education, but also in terms of personal and social development.

Article 39 (recovery from trauma and reintegration)

“Children who have experienced neglect, abuse, exploitation, torture or who are victims of war must receive special support to help them recover their health, dignity, self-respect and social life.”

The 2004 Act recognises that looked after children, those affected by trauma, adverse childhood experiences, or those with mental health issues may require educational support. It ensures their individual needs are considered and requires education authorities to put the appropriate support in place.

Article 40 (juvenile justice)

“A child accused or guilty of breaking the law must be treated with dignity and respect. They have the right to legal assistance and a fair trial that takes account of their age. Governments must set a minimum age for children to be tried in a criminal court and manage a justice system that enables children who have been in conflict with the law to reintegrate into society.”

When a child or young person is engaged with the criminal justice system, their right to education and appropriate support under the 2004 Act must be upheld. This aligns with Article 40 which upholds the rights of children accused of offences to be treated in a manner that promotes their dignity and supports their reintegration, including through continued access to education and appropriate support.

33. To support public authorities in implementing and delivering the provisions of the 2024 Act the Scottish Government has published statutory guidance on Part 2^[20].

34. Under the UNCRC Act, Scottish Ministers have a duty to set out in a Children’s Rights Scheme arrangements that they have made, or propose to make, to ensure that they comply with the section 6 compatibility duty under the Act and to secure or further effect the rights of children.

Duties of education authorities and other agencies

35. The 2004 Act places several duties on education authorities regarding the provision of school education (including funded ELC provided to eligible pre-school children) for children and young people with additional support needs in their area. These include:

• Identify additional support needs and put arrangements in place for early recognition.
• Ensure adequate and efficient provision of the required additional support for every child or young person for whom they are responsible, subject to certain exceptions.
• Continuously assess the additional support needs of each child or young person and review the adequacy of support provided.
• Provide appropriate support for disabled children under school age (who are not an eligible pre-school child) who have been identified as having additional support needs due to their disability.
• Presume that all looked after children and young people have additional support needs, unless an assessment determines that additional support is not required for them to benefit from school education.
• Publish, review, and update information on their policy and procedures for identifying, supporting, and reviewing the additional support needs of children and young people.
• Provide parents (and eligible children or young people) with all legally required information regarding additional support needs and the services available.
• Ensure that a summary of this information is available:
  • In every location where school education is provided within the education authority’s area, whether or not provided by the education authority.
  • In school handbooks and other relevant publications issued by the education authority.
  • On websites maintained by schools and the education authority.
• Assess the capacity and wellbeing impact of children aged 12 and over who wish to exercise their rights under the 2004 Act regarding additional support for learning.
• Provide a co-ordinated support plan for those who meet the criteria and keep it under regular review.
• Assess whether each looked after child or young person requires a co-ordinated support plan.
• Offer free and independent mediation services for parents and young people who wish to resolve disagreements, and publish information about these services.
• Establish formal arrangements for resolving disputes related to additional support needs.
• Supporting children and young people during transitions.
• No later than 12 months before a child or young person is expected to leave school, seek and consider information from appropriate agencies that may provide support post-school.
• No later than 6 months before school leaving date, share relevant information with appropriate agencies responsible for post-school support, if consent is given by the child (if aged 12 or over and has capacity), the young person, or the parent.

Appropriate agencies^[21]

36. The 2004 Act has an impact wider than education and has significant implications for service providers and professionals working in the health service and in the other appropriate agencies as defined below. These agencies play a crucial role in supporting education authorities to meet the needs of children and young people with additional support needs.

37. An appropriate agency must help the education authority in carrying out its functions, if requested. However, an agency is not required to comply if the request is incompatible with the agency’s own statutory duties or unduly prejudices the agency’s discharge of its own functions^[22].

38. Under Section 23 of the 2004 Act an appropriate agency is:

• Any other local authority.
• Any Health Board.

39. The 2004 Act also allows Scottish Ministers to designate additional appropriate agencies through legislation. In addition to the agencies listed above, Scottish Ministers have determined that the following are appropriate agencies under the 2004 Act:

• Skills Development Scotland.
• All colleges of further education in Scotland.
• All higher education institutions in Scotland.

40. Voluntary organisations are not appropriate agencies as defined by the 2004 Act.

41. Under the 2004 Act, a request for support could be made by an education authority to social work services belonging to another authority. This would be a request to an appropriate agency.

42. However, the social work service within the same local authority is not an appropriate agency but is covered by the 2004 Act in that it requires an education authority to exercise any of their other functions (whether relating to education or not) if they consider that would help them in carrying out their duties^[23].

43. In most cases, an appropriate agency is expected to respond to a request for assistance from an education authority. However, if, for any of the reasons outlined in paragraph 37 the appropriate agency is unable to comply with the request for help, it is the responsibility of the education authority to resolve the issue. Ultimately, the education authority remains legally responsible to provide (or arrange for the provision of) the necessary services.

Powers of education authorities

44. Under Section 30 of the Education (Scotland) Act 1980^[24] (“the 1980 Act”) parents of school-aged children have a duty to provide efficient education for their children suitable to their age, ability and aptitude.

“It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.”

45. Most parents fulfil this duty by enrolling their child in a local authority school. However, they may choose to fulfil this by educating their child at home or privately funding an independent or grant-aided school for their child. In such cases, parents, managers of independent or grant-aided schools may request the child's home education authority:

• to determine whether the child or young person has additional support needs, and
• assess whether they would require a co-ordinated support plan if the education authority were responsible for their school education.

46. The 2004 Act grants education authorities the power to support children and young people who have or may have additional support needs, even if the authority is not responsible for their school education.

47. While the education authority is legally required to carry out its duties, powers are discretionary functions. This means that the education authority may choose to exercise them but is not legally required to do so.

48. Under the 2004 Act education authorities may choose to provide support, such as learning and teaching assistance, resources, or advice, to children and young people being educated at home and those attending independent schools, where parents have chosen to send them.

49. Education authorities are not required to comply with these requests. This is in contrast to eligible pre-school children, attending a private or third sector provider (including childminders) to access their funded ELC hours. As this is statutory provision, the education authorities’ duties to provide support apply equally as if the funded ELC was being accessed in a local authority setting

50. If education authorities choose to comply, they must provide the parents, eligible child, young person or school managers with information and advice about the additional support required.

51. Education authorities also have the power to arrange for children or young people with additional support needs to attend educational establishments outside the United Kingdom, provided these institutions primarily cater to children and young people with additional support needs^[25].

Limitations

52. Education authorities are not required to act beyond their legal powers or spend public money unreasonably.

Unreasonable public expenditure

53. The law does not define this term, but it generally means:

• The cost is far greater than the expected benefit to the child or young person.
• A suitable alternative exists that is significantly more cost-effective.
• The cost of new facilities would be excessive compared to the benefit to the wider community.
• Authorities must balance financial considerations with their duty to provide best value and service improvement.
• Cost alone should not determine support decisions. Education authorities should consider whether an investment in one child’s support could benefit other children in the future.

54. If an authority refuses a request due to cost or lack of legal power, they must:

• Explain their decision and associated reasons in writing.
• Inform the person who made the request about available mediation services (for parents and young people), dispute resolution options and the Tribunal process.