Additional support for learning: statutory guidance 2017

Chapter 7: Working with Children and Families

1. This chapter of the code describes how children, young people and their parents can be successfully involved in education and learning and describes the Act’s provisions regarding supporters and advocacy.

2. All children and young people should have the opportunity to make their views known about decisions which affect them. They should have the opportunity to express their opinions and have these opinions taken seriously. They should be encouraged to contribute to decision-making processes, the setting of educational objectives, the preparation of learning plans, reviews and transition planning. They need to know that what they have to say will be respected, listened to and, where appropriate, acted on.

3. Parents must also be encouraged and have the opportunity to be involved fully in discussions and decisions about their child’s learning ^[91] . Most parents want what is best for their children and have unique knowledge and experience to contribute to understanding and meeting their child’s additional support needs. They, therefore, have a key role to play in their child’s education and account must be taken of their views and the perspective they bring.

4. Professionals need to involve parents and take account of their views on their child’s development and education at the earliest opportunity. Partnership with parents is, therefore, central to ensuring that children and young people with additional support needs benefit fully from school education. The Act serves to strengthen further the involvement of children, young people and their parents in working with authorities to reach decisions which are best for children’s and young people’s learning. The 2016 Act has extended children’s rights in respect of additional support for learning subject to safeguards about capacity and wellbeing.

Views of children and young people

2000 Act s2(2)

5. The 2000 Act places a duty upon education authorities, where they are responsible for the school education of a child or young person, to secure that the education is directed towards the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential. In so doing, the authority must, so far as is reasonably practicable, have regard to the views of children and young people (if there is a wish to express them) in decisions that significantly affect their education.

s12(2) and (3)

6. The Act builds on the above duty by placing a duty on the education authority to seek and take account of views of children and young people as the authority consider appropriate under specific circumstances. These circumstances include where the authority are seeking to establish whether the child or young person has additional support needs and when they are determining what additional support the child or young person may require. The authority have some discretion in whether they seek the views of such children or young people. The purpose of this provision is, primarily, to avoid over-formalising the dialogue between professionals, teachers especially, and children and young people by requiring the authority to take account of, and record, children’s and young people’s views every time they are considering whether children or young people have additional support needs. Within Curriculum for Excellence, all children should be encouraged to take part in personal learning planning processes and in discussing, monitoring and evaluating their learning. It is expected that, except under exceptional circumstances, children and young people who have additional support needs should have the opportunity to discuss their needs and the support to be provided to meet those needs. Tools which can support this include, The Children and Young People’s Commissioner for Scotland’s resource, The 7 Golden Rules for Participation, this a set of principles that anyone working with children and young people can use to support children and young people to actively participate in decision making. https://www.cypcs.org.uk/education/golden-rules

s12(1),(2) and (3)

7. In addition to the general good practice in involving children and young people in making decisions about their school education, under the Act an education authority must seek, and take account of the views of children and young people (unless the child or young person is not able to provide a view; then the views of the parents are sought) when they are:

• establishing whether a co-ordinated support plan is required
• preparing a co-ordinated support plan
• reviewing whether the child or young person still requires a co-ordinated support plan.

8. In the circumstances where an education authority has not been able to secure the child’s view through their usual means, in certain circumstances, they may use the children’s views service which has been established as part of the Children’s Service to establish the child’s view independently of all other parties. The service will seek the view on behalf of the authority and provide any view established to the authority to support the relevant process.

Expressing views

9. In order to express views, children and young people need to have experience of being asked for their views, being listened to, making some choices and having some influence over what they do. Schools and early years settings should create a climate where seeking children’s views and encouraging participation in decision-making are part of everyday activities. Children and young people can expect their learning environment to support them to understand that adults in their school community have a responsibility to look after them, listen to their concerns and involve others where necessary. It should be noted that the Act does not require the education authority to have parental consent before seeking and taking account of children’s views. Even where the parents do not wish their child’s views to be sought the education authority are still under a duty to seek and take account of the child’s views; where a child is concerned, education authorities are to seek and take account of the views of both the child and the parent unless they are satisfied that the child lacks the capacity to express a view. In that event, the views of the parent only are to be sought. In the case of a young person, if the education authority are satisfied that the young person lacks the capacity to express a view, then it is only to seek and take account of the views of the young person’s parent.

10. Some children and young people with additional support needs will be able to express themselves clearly and directly. All they may need are the opportunities and the encouragement to do so. Others may need support with communication or to gain confidence to express their views. Very few will be unable to express a view at all. The Children’s Support Service which is required to be provided by Scottish Ministers, includes an independent service which can seek the views of children where it has not been possible to get those views through usual mechanisms. In those circumstances an education authority, other agency or the Tribunal can ask to have the child’s views sought and taken account of within the processes associated with rights, duties and functions under the Education (Additional Support for Learning) Act.

11. The education authority may have to make specific arrangements to seek out the views of some children and young people such as, for example, children with complex communication support needs. They may need to make arrangements for those who require an interpreter; or whose first language is not English; or who have behavioural difficulties and are unwilling to co-operate. But it is just as important and relevant for these children and young people to have their views listened to as it is for those who can more easily express views. A range of approaches will need to be considered to determine their views including, for example, the use of alternative or augmentative communication systems, including signing, the use of interpreters, and engaging the views of others such as family members, foster carers, social workers and other professionals who know the child or young person.

12. As indicated above at paragraph 8, in certain circumstances, the Children’s Views service may have a role to play in gathering the views of a child on behalf of a service. This includes the circumstances where a child requires to be supported to give a view, particularly where this required a reasonable adjustment or alternative form of communication to be used.

Jamie is 13 years old and has depression. A meeting was convened to discuss his additional support needs but he made it clear that he would not attend. He agreed with his guidance teacher that a video could be made of them discussing what additional support he would find helpful.

Communication with children and young people

13. Good communication with children and young people is essential in order to enable them to influence decisions about their learning. This applies equally to education generally and at specific points related to matters concerning co-ordinated support plans. There are many reasons why a child or young person may have difficulty in expressing his/her views. For example, communication with young children requires a range of different strategies which could include play, art, and the use of mobile, audio and video technology. Education authorities should take account of the good practice points at the end of this chapter.

14. Representatives of appropriate agencies may be able to provide guidance and support to children and young people to help them express their views. They may also be able to provide guidance and support to other people involved in meetings to help them access the best method of communication. For example, a speech and language therapist may offer guidance on the best communication approach to use to ensure that the child or young person understands the discussion and on how best to facilitate and support his/her response.

15. When noting views, particularly where the child or young person has communication support needs, it is helpful to consider two factors. Firstly, what the child or young person actually expressed, whether through speech, in writing, audio recording, sign or other form of communication such as facial expression or body posture. Secondly, what interpretation was made of the child’s or young person‘s view and by whom. Both should be noted.

Taking account of views

16. Having sought the child’s or young person’s views, and recorded what these are, education authorities need to consider what weight to give to them. Taking account of these views does not mean education authorities have to accept and implement everything. At the same time, once sought and expressed, these views should not be disregarded and due weight should be given with consideration of the following:

• the child’s or young person’s capacity to understand the information on which his/her views were based
• the ability of the child or young person to express his/her own views
• the child’s or young person’s understanding of the range of options
• how well the people reporting the child’s or young person’s views know him/her.

17. It is important that a balance is struck between what a child or young person may want and what is realistic and appropriate. Where an education authority are unable to act on a child‘’ or young person’s views, reasons for this should be provided to them as appropriate.

Rights of children who have capacity

18. Children who have attained the age of 12 years and who have capacity have had their rights extended within additional support for learning (eligible child). The decision an education authority or Tribunal has to reach in relation to the capacity of a child aged 12 years and over is whether the child has sufficient maturity and understanding. 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. The assessment of the child’s capacity will involve responding to the following questions about particular rights:

• Does the child have sufficient maturity and understanding to carry out an action (i.e. use the right)?
• 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 respect of 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 co-ordinated support plan?
• In relation to rights to express their view does the child have sufficient maturity and understanding to express the view?

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).

19. When carrying out an assessment of a child’s maturity and understanding the education authority may wish to take into account the following factors, although 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 of learning: 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 may be evidenced by progress within health and wellbeing within Curriculum for Excellence and its key features of healthy living and relationships, and in approaches to personal planning, assessing risk and decision making
• a child’s level of achievement can be used to provide robust and credible evidence of their level of understanding, for example, children who have achieved across Second level and who are working towards Third level experiences and outcomes across literacy and numeracy will generally be considered to have sufficient understanding to exercise their rights;
• support from an adult who knows the child well. The assessment of the teacher (whether in primary, secondary or special school) who knows the child well, and 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.

20. Taking such factors into account, in almost all instances the class teacher, pastoral care staff or support teacher will have a view on the child’s maturity and understanding to exercise a particular right in context. In a few instances the assessment could be supported through the advice and guidance of education authority officials such as an educational psychologist.

21. As well as an education authority being satisfied about a child’s capacity to exercise their rights a further safeguard is provided for in the Act. An education authority is to be satisfied that in exercising their rights, children will not experience any adverse impact on their wellbeing. The child’s wellbeing is as described with reference to the indicators in Getting it right for every child and focuses on the extent to which the child is or would be Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included. The impact on child’s wellbeing will be considered in terms of the indicators.

22. When considering adverse impact on a child’s wellbeing when exercising their rights, an education authority can take into account the following factors:

• the impact on child’s health and wellbeing as part of Curriculum for Excellence (where their progress is assessed as the child is developing the knowledge and understanding skills, attributes and capabilities which they need for mental, emotional, social and physical wellbeing now and in the future);
• in considering any adverse impact on the indicators of wellbeing, a variety of assessment tools can be helpful including, for example:
• the Getting it Right for Every Child interactive guide http://www.gov.scot/Resource/0044/00446438.pdf

• National Guidance on Child Protection
• http://www.gov.scot/Publications/2014/05/3052/0 support from an adult who knows the child well. The assessment of the teacher 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.

23. Taking such factors into account, in almost all instances the class teacher, pastoral care staff or support teacher will be able to consider any adverse impact of a child exercising their rights. Teachers will want to discuss with the child to consider whether there would be any adverse impact of them exercising particular rights. In a few instances, the assessment could be supported through the advice and guidance of education authority officials such as an educational psychologist and through other agencies involved in supporting wellbeing. Particularly where there is not a clear conclusion. For instance for a child on the child protection register a range of assessment tools can be used to judge impact on wellbeing. Further non-statutory guidance in respect of children’s rights, assessment of capacity and wellbeing can be found in Extending Children’s Rights- Guidance on the assessment of capacity and consideration of wellbeing.

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

The role of parents

s12(2)

25. The Act allows parents to speak and act for their child, or young person, where the child or young person lacks capacity to express a view. Nevertheless, it is important to continue to support the child’s or young person’s participation in decision-making, at an appropriate level, at the same time as seeking the views of their parents.

26. Those who are closest to the child or young person can often give an informed view on whether or not he/she can understand a particular matter. These could include parents, foster carers, teachers, allied health professionals or social workers. A speech and language therapy assessment of comprehension should inform this process where there are differences in opinion or significant uncertainty about comprehension. The education authority should consider all these views when being called on to make a decision about capacity. It is best to reach such decisions by consensus recording clearly why such a view was reached and how it was arrived at. Where a parent, child or young person disagrees with the authority’s decision this should be recorded.

27. An education authority will also need to take note of the arrangements for decision-making under the Adults with Incapacity (Scotland) Act 2000 and any persons with legal powers in respect of an adult for whom the authority is providing school education. An adult under this legislation is someone aged 16 and over.

Good practice in communicating with children and young people

A child or young person may benefit from:

• being given enough time to prepare and to go over the ideas and material to be discussed
• being given information in a form which is readily understood
• a teacher or other supporter to help understand the meaning of key terms and concepts
• a supportive communication facilitator to tease out the full meaning of all of the issues
• specialised or new vocabulary (perhaps in sign or symbol form) in order to discuss a particular topic
• support to go over ideas, perhaps on several occasions
• help to understand outcomes and agreements.

Issues related to communication and language:

• if spoken English is not the child’s or young person’s first language, consider using an interpreter, preferably not a family member to avoid any conflict of interests
• consider using a facilitator for those with language or speech difficulties
• use appropriate alternative or augmentative communication systems such as visual aids and/or sign language for deaf and/or communication impaired children or young people
• take account of any cultural preferences
• take time to explain what decision has to be made, why it’s important and how the child or young person can influence it.
• Where appropriate consider the use of tools such as the Autism toolbox ^[92] and Dyslexia Toolkit ^[93] or Communication Passport ^[94] .

Supporting parents

28. All professionals, schools, education authorities and appropriate agencies should seek actively to involve parents in their work with children. They should recognise and value parent’s unique contribution, take their views into consideration and regard them as vital partners in their children’s learning. Professionals must take responsibility for encouraging good relationships with families based on trust, openness and effective communication. Education staff and other professionals must work together to ensure that they give clear, honest and consistent messages to parents. For example, parents may need to be given support and information to help them understand their rights and those of their child; or, where appropriate, given an explanation of one purpose of a co-ordinated support plan as being a tool for co-ordinating support rather than a key to accessing services; or provided with explanations of the types of support provided by allied health professionals ^[95] . The Act serves to strengthen further the involvement of children, young people and their parents in working with authorities to reach decisions which are best for children’s and young people’s learning. This can be best achieved by strong relationships, good communication and when parents share an understanding of the framework, planning arrangements and systems of support available.

29. In good practice, authorities and other agencies will ensure that parents are fully aware of the processes for assessing and providing for children’s additional support needs, understand the planning approaches and are familiar with the support services available from the school, the education authority and from other agencies, including voluntary organisations. Wherever possible, a partnership approach should be extended to include older children and young people.

s26

s31

30. Access to information and advice is central. The Act requires education authorities to publish information about certain specified matters as noted in chapter 9 paragraph 27. They should ensure, in discharging their statutory information duties, that they use accessible language and take account of the eligible child’s, young person’s and parent’s rights to information and advice about the authority’s provision for additional support needs. Some young people and parents may need information presented in permanent forms other than writing such as by using audio or video technology ^[96] . The authority should have a named contact person for additional support needs who can provide parents with information on the availability of supporters and advocates. Education authorities should also be aware of the valuable role the voluntary sector has in supporting parents and should aim to establish links and support effective working, wherever possible.

Working with children and families

Naomi, aged 6, lives with her father John and 4 older brothers and sisters. She sees her mum only very occasionally as she lives in England. Naomi has additional support needs arising from a number of factors: she finds it difficult to concentrate for long periods in class and she gets extra support to help keep her on task. She is in a nurture class in school and also attends a small communication group run by the speech and language therapist. The family has a social worker.

The school has regular meetings with John to discuss her progress and her targets in her IEP. Due to the difficult family circumstances, John has been asked when and where he would like meetings to take place, whether he wants written as well as spoken accounts of Naomi’s progress, and whether he wants to bring a friend or relative with him to meetings. The school have taken time to explain about Naomi’s additional support needs and how they, the local authority and speech and language therapist are supporting Naomi. John has been asked what help he thinks Naomi needs and what type of help he and others can give her at home. Suggestions for what he can do at home are discussed and included in Naomi’s IEP. He has been given the contact details for Enquire as somewhere he can go for independent advice. He has also been informed that there is a free local advocacy service which can help him prepare and support him in getting his points across at meetings. At the beginning of each meeting, John is asked for his views on Naomi’s progress and asked if he has any questions or concerns. His views are taken into account and reflected in any future targets and plans for Naomi. At times, the school and other professionals disagree with him but a compromise is reached which respects his views and understanding of Naomi’s needs. This is explained clearly to John to ensure that he understands not only why any decision is taken but also what he can do, if he still disagrees with it. He is made fully aware of rights under the Additional Support for Learning Act.

As well the IEP meetings, the Deputy Head in the school calls John every fortnight to let him know how Naomi is getting on, and makes a point of mentioning good progress as well as any issues that are being addressed. He is invited in for an informal coffee morning with other parents every month. There is home/school diary which keeps him informed of Naomi’s daily progress. Arrangements are also made to ensure that Naomi’s mum is updated on her progress.

Supporters and advocacy

31. Supporters and advocates can help by making sure that a parent’s, eligible child’s or young person’s view is understood, put across and taken account of in discussions where parents or young people feel unable or less confident to do so themselves.

s14

32. The Act provides young people, eligible children and parents with the right to have a supporter or advocate present at any discussions or meetings with an education authority in regard to the authority’s functions under the Act. Education authorities should, as a matter of good practice, make parents, eligible children and young people aware of this right and how they can find out how to access such services.

33. The education authority must comply with the wish to have a supporter or advocate present unless the wish is unreasonable. Judgements about what an education authority may view to be unreasonable will depend very much on the particular circumstances being considered. An education authority may consider it unreasonable to include a supporter or advocate in discussions where the supporter or advocate is unable to represent the parent or young person appropriately. In such circumstances, the education authority should provide the parent or young person with their reasons for taking this view and for deciding that a particular supporter or advocate should not be present during discussions.

34. An eligible child does have a right to have a supporter present at discussions or an advocate to conduct discussions on their behalf. This request can be made only if the education authority is satisfied that the wishes of the child are not unreasonable and the child has capacity to participate in discussions or make representations.

Supporters

35. A supporter can be anyone the parent, or young person or eligible child wants to nominate. A supporter could be a relative, friend, befriender or voluntary organisation worker or other person. The supporter could also be a professional working with the family provided there is no conflict of interest with that professional’s duty under the Act or his/her responsibilities as an employee. A supporter can attend discussions with the parent, young person or eligible child. The supporter may assist in a number of different ways, including:

• acting as a sounding board for the parent in preparing for the meeting
• taking notes so that the parent or young person can participate more fully in the discussions
• suggesting points for further clarification, questions to ask or giving advice to the parent during the meeting.

Advocates

36. The Act allows for a parent, eligible child or young person to appoint a person to conduct all or part of any discussion with the education authority or make written or other representation to the authority on their behalf. This person, known as an advocate, can come from a range of backgrounds, including:

• someone who has acted, or is already acting, as a supporter to the parent or young person – the parent or young person may wish the supporter to speak on his or her behalf

s14(1)(b)

• a person not trained in advocacy but who is aware of education and other legislation and/or the needs of the child or young person who has additional support needs
• a voluntary organisation which need not be an advocacy organisation

37. A formal advocacy service or agency, with trained advocates, possibly operating to its own guidelines or code of practice. This could include the advocacy element of the Children’s Support Service. The main objectives of an advocate should be to speak up on behalf of the parent, eligible child, or young person and to represent the parent or young person at discussions ^[97] .

38. Education authorities do not have a duty to provide or pay for a supporter or advocate. They should include, in their information for parents, details about the right to have an advocate or a supporter involved and how parents, eligible children or young people can find out what services are available in their area.

The Tribunal

s14A

39. The Act, as amended, requires the Scottish Ministers to make an advocacy service available on request and free of charge to support parents and young people in Tribunal proceedings. By advocacy service in this context the Act means “a service whereby another person conducts discussions with or makes representations to the Tribunal or any other persons involved in the proceedings” on behalf of the parent or young person. The service becomes available when a parent or young person is considering making a reference to the Tribunal. It is expected that there would be discussions or meetings between the parent(s), or young person and the advocate prior to appearing before the Tribunal. The service is also available to support parents or young persons in formulating their application and in related discussions with local authorities ^[98] as well as to provide support at the actual Tribunal hearing.

40. As a matter of good practice, education authorities should inform parents, children and young people about the advocacy service when they become aware that a parent, child or young person is considering making a reference to the Tribunal. They should also refer to the service in the information they publish about additional support needs under the Act.

41. Parents will be able to obtain information about how to access the advocacy service from the Tribunal secretariat and from the Scottish Advice Service for Additional Support for Learning- Enquire ^[99] .

42. For eligible children the same services, advocacy and legal representation are available in relation to the Tribunal. However, these are delivered by a different provider than the young person and parents services to prevent conflict of interest arising. Children and eligible children can also seek advice and information from Enquire the national advice and information service about their rights and sources of support.

Good practice in communicating with parents

43. Education authorities should take account of the following good practice points when working with parents.

Professionals should:

• acknowledge and draw on parental knowledge and expertise in relation to their child
• consider the child’s strengths as well as additional support needs
• recognise the personal and emotional investment of parents and be aware of their feelings
• ensure that parents understand procedures, are aware of how to access support and are given documents to be discussed well in advance of meetings
• respect the validity of differing perspectives and seek constructive ways of reconciling different viewpoints
• cater for the differing needs parents may have, such as those arising from a disability, or communication and linguistic barriers.

Information should be:

• clear and understandable and avoid jargon
• provided easily in accessible formats
• readily available and provided automatically without a charge and without a fuss.

Communication works well when:

• people have the interpreters they need
• someone in authority takes responsibility for keeping parents up-to-date
• people are told what has been happening between meetings
• any information provided by parents is acknowledged
• formal references to statutory procedures are avoided.

Effective working relationships develop when:

• contact with parents is sensitive, positive, helpful and regular
• parents feel included and are encouraged to contribute to discussions
• positive, clear and easily understood language is used
• parents are involved and processes and roles are explained from the beginning
• parents are told what to expect and the next steps
• times of meeting take account of parents’ availability.

Meetings work best when:

• parents are asked what times and places suit them best, taking account of any access need or family responsibilities
• notes from meetings, and any papers to be considered, are sent out in good time
• parents are invited to add points to the agenda, at the same time as everyone else
• people attending are aware of their roles and the roles of others and they understand the child’s or young person’s additional support needs
• there are no hidden issues, and no last minute surprises
• decisions are made when parents are at the meeting, or agreed with them
• before meeting takes place, not after the meeting has closed, unless further consultation takes place with them
• ample time is given to allow people time to raise concerns, so that decisions are not rushed.

Identifying the way forward works well when:

• all views are taken on board – including those of the child or young person
• people are interested in learning from each other
• people show an interest in general family priorities and take them on board
• services are identified in agreement with the family and are responsive to individual needs.

Accountability and involvement:

• who is responsible for what is clearly defined and understood
• parents concerns are responded to quickly
• decisions are open to scrutiny
• parents have a clear point of contact who can answer questions, make decisions and ensure that agreed actions are taken
• people do what they agreed within the timescale committed to – if a decision is likely to take time, parents are told and given some idea of when a decision is likely.