Additional support for learning: guidance on assessing capacity and considering wellbeing

Chapter One Introduction

Introduction

1 In Scotland children who have attained 12 years of age are now empowered by the extension of their rights in respect of additional support for learning in school education. Children now broadly have similar rights to parents ^[1] and young people for their additional support needs. The extension to children's rights is accompanied by safeguards in the form of assessments of capacity and consideration of impact on a child's wellbeing.

The purpose of this guidance

2 The purpose of this guidance is to provide education authorities and schools with non-statutory guidance and information on the new rights of eligible children. Eligible child is used throughout, to refer to a child in school education who has attained the age of 12 but not 16, and who has been assessed as having capacity (sufficient maturity and understanding) to exercise their rights, under the Education (Additional Support for Learning) (Scotland) Act 2004 as amended, and that the education authority (or Tribunal) considers the wellbeing of the child would not be adversely affected by the child exercising their rights.

3 The guidance includes advice on assessing capacity of children, aged 12 to 15 to exercise their rights in respect of additional support for learning in school education. The guidance also provides information for considering the impact on a child's wellbeing when exercising these rights. This guidance complements that which is provided in the statutory guidance on the Additional Support for Learning (Scotland) Act 2004, the Supporting Children's Learning Code of Practice, which was updated in 2017 to take into account the extension of children's rights.

4 In this context, there are important differences for decisions about capacity compared to those for young people, (aged 16 and over in school education) or adults within services including education, social care or health services. This guidance does not provide advice in relation to capacity of young people in relation to the Additional Support for Learning (Scotland) Act 2004. Young people aged 16 and over and who have remained in education, have presumed capacity. Please see the Supporting Children's Learning Code of Practice for further information on this issue.

Who is this guidance for?

5 This guidance is primarily for staff in education authorities and schools including:

• Officials in education authorities with responsibilities for additional support for learning, and educational psychologists who work directly with, or advise schools about children and young people with additional support needs.
• Headteachers of primary, secondary and special schools.
• Support for learning teachers, centrally or school-based, at primary or secondary stages who act as the lead professional for children with additional support needs.
• Primary teachers at P7 stages, or teachers in special schools and pastoral care and guidance teachers in secondary schools, who are the key individuals that know the child well in their school education.
• Support staff in schools who provide support to pupils with additional support needs.
• Those who work with looked after children, young carers and other pupils whose parents may not be able to act on their behalf.

6 Those in independent or grant-aided schools, health boards, social work services and voluntary services or agencies, who are providing help to education authorities to fulfil their functions under the Act, may also contribute and provide supporting evidence to schools and education authorities, in these assessments and considerations.