Guidance on assessing capacity and considering wellbeing: analysis of consultation responses

Background

1. The Scottish Government opened a 12 week consultation on Extending Children's Rights - Guidance for education authorities and school staff on assessment of capacity and consideration of wellbeing of children who have attained 12 years of age in respect of additional support for learning in school education, on 25 August 2017. The consultation closed on 17 November 2017.

2. The consultation sought views from those involved in supporting children and young people with additional support needs. This included: parents and carers, those working in schools, education authorities, health boards, social work services, voluntary sector services and those who are involved in providing dispute resolution services including mediation, independent adjudication and Tribunals. This consultation would also have been of interest to those organisations and individuals who have an interest in the promotion of children's rights in Scotland.

3. The Education (Additional Support for Learning) (Scotland) Act 2004 ("the Act") has been amended by the Education (Scotland) Act 2016. This extension provides that children will have largely the same rights as young people and parents under the Additional Support for Learning legislation, except in relation to placing requests and the use of mediation services. It is intended that these amendments to the Act will commence in January 2018.

4. As well as providing this non-statutory guidance on extended children's rights, the amendments to the Act have also required the statutory guidance to the Act (The Supporting Children's Learning Code of Practice) and associated regulations to be updated, which were part of a separate consultation held earlier this year. An analysis report and a link to the published consultation responses can be found at: http://www.gov.scot/Publications/2017/11/2376

5. The purpose of this guidance is to provide education authorities and schools with non-statutory guidance on the assessment of capacity and adverse impact on wellbeing, which is a requirement introduced as part of the extension of children's rights. This guidance is primarily for staff in education authorities and schools, and complements that which is provided in the statutory Code of Practice on Supporting Children's Learning.