Supporting Children's Learning code of practice: consultation

Chapter 1 Summary of the Additional Support for Learning Act

1. This chapter summarises the main provisions of the Act. This summary takes account of amendments to the Act introduced by the 2009 and 2016 Acts but does not cover all of the Act's provisions. It is provided for ease of reference as a brief overview of the Act, as amended. It is not an authoritative interpretation of the legislation which only the courts can provide.

2. The Act provides the legal framework underpinning the system for supporting children and young people in their school education, and their families. This framework is based on the idea of additional supportneeds. This broad and inclusive term applies to children or young people who, for whatever reason, require additional support, long or short term, in order to help them make the most of their school education and to be included fully in their learning. Children or young people may require additional support for a variety of reasons and may include those who:

• have motor or sensory impairments
• have low birth weight
• are being bullied
• are children of parents in the Armed Forces
• are particularly able or talented ^[10]
• have experienced a bereavement
• are affected by familial imprisonment
• are interrupted learners
• have a learning disability
• have barriers to learning as a result of a health need such as foetal alcohol spectrum disorder
• are looked after by a local authority ^[11]
• have a learning difficulty, such as dyslexia
• are living with parents who are abusing substances
• are living with parents who have mental health problems
• have English as an additional language
• are not attending school regularly
• have emotional or social difficulties
• are on the child protection register
• are refugees
• are young carers.

3. The above list is not exhaustive nor should it be assumed that inclusion in the list inevitably implies that additional support will be necessary. However, the Act automatically deems that all looked after children and young people have additional support needs unless the education authority determine that they do not require additional support in order to benefit from school education. In addition, education authorities must consider whether each looked after child or young person for whose school education they are responsible requires a co-ordinated support plan. In discharging their responsibilities towards looked after children and young people, authorities are obliged to take steps to consider the educational progress of these children and young people. These steps should include establishing whether looked after children and young people require additional support to enable them to benefit from school education and which of those with additional support needs meet the requirements for having a co-ordinated support plan (see chapter 5).

Functions and duties of education authorities

4. The Act confers various functions and imposes duties on education authorities in connection with the provision of school education for children and young people with additional support needs belonging to their area. Some of the main duties are listed below. Education authorities must:

• make adequate and efficient provision for the additional support required for each child or young person with additional support needs for whose school education they are responsible, subject to certain exceptions
• make arrangements to identify additional support needs
• keep under consideration the additional support needs identified and the adequacy of support provided to meet the needs of each child or young person
• provide appropriate additional support for certain disabled children under school age (in this case, generally children under 3 years of age) belonging to their area who have been brought to the attention of the authority as having additional support needs arising from their disability
• presume that all looked after children and young people have additional support needs unless the authority determine that they do not require additional support to enable them to benefit from school education
• presume that all looked after children and young people require a coordinated support plan unless the authority determine that they do not meet the requirements for having one
• publish, review and update, as necessary, specified information about their policy and arrangements in relation to provision for identifying, addressing and keeping under consideration such provision for each child or young person with additional support needs for whose school education the authority are responsible
• provide parents of children with additional support needs (eligible children and young people with additional support needs), for whose school education the education authority are responsible with all of the information they are required to publish under the Act
• ensure that a summary of the information published under the Act is available, on request, from each place in the authority's area where school education is provided, regardless of whether the school is under the management of the education authority
• provide the above summary in any handbook or other publications provided by any school in the authority's area or by the authority for the purposes of providing general information about the school or, as the case may be, the services provided by the authority, and on any website maintained by any such school or the authority for that purpose
• assess the capacity and impact on wellbeing of a child over the age of 12 years to be able to exercise their rights in respect of additional support for learning, where a child of this age seeks to exercise any right under the Act
• provide those children or young people who need one with a coordinated support plan and keep this plan under regular review
• provide independent and free mediation services for those parents and young people who want to use such services and publish information on these services
• have in place arrangements for resolving disputes
• at least 12 months prior to the expected school leaving date, request and take account of information and advice from appropriate agencies likely to make provision for the child or young person when he or she leaves school
• no later than 6 months before the child or young person is expected to leave school provide information to whichever appropriate agency or agencies, as the authority think appropriate, may be responsible for supporting the young person once he or she leaves school, if the child (where the child has attained the age of 12 and has capacity), child's parent or young person agrees.

Powers of education authorities

5. The Act gives education authorities the power to help children and young people belonging to their area who have or may have additional support needs and for whose school education they are not responsible. A power is a discretionary function of an education authority which the authority may or may not decide to exercise whereas duties must be carried out. Those who may be supported include children and young people sent to independent schools by their parents and those being educated at home. The support can include, for example, provision of learning and teaching support, resources or advice, as considered below.

s5(4)
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6. A child who has attained the age of 12 years and who the authority are satisfied has capacity, parents of such children and children or young people may request the education authority to establish whether they/their child or young person has additional support needs or, if the education authority were responsible for the school education of the child or young person, would require a co-ordinated support plan. The education authority are not required to comply with the request but if they do, they must provide the child (if they have capacity to undersand the information or advice), parent or young person with information and advice about the additional support required.

7. Parents may arrange directly for children and young people to attend grant-aided and independent schools. This is because parents and not an education authority are responsible for the child's or young person's school education. In these circumstances, managers of grant-aided or independent schools may request the education authority for the area to which the child or young person belongs, to establish whether a child or young person attending their school has additional supportneeds and would require a co-ordinated support plan, if the education authority were responsible for the school education of the child or young person. The education authority are not required to comply with the request but if they do they must provide the managers of the school with information and advice about the additional support required.

8. Education authorities may arrange for children or young people with additional support needs to attend establishments outwith the United Kingdom which make provision wholly or mainly for those with such additional support needs.

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Appropriate agencies

9. The 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. An appropriate agency must help the education authority in the exercise of any of its functions under this Act, if requested to do so by the education authority, unless the request is incompatible with the agency's own statutory or other duties or unduly prejudices the agency's discharge of its own functions. Under the Act an appropriate agency is:

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• any other local authority
• any NHS Board.

10. The Act also enables the Scottish Ministers to make an order naming other appropriate agencies. In addition to the above, the Scottish Ministers have determined that Skills Development Scotland, all colleges of further education and all institutions of higher education in Scotland, and the Scottish Agricultural College are appropriate agencies for the purpose of the Act. It should be noted here that voluntary organisations are not appropriate agencies as defined by the Act.

11. It is expected that in most circumstances an appropriate agency will respond to a request for help from an education authority. However, if, for any of the reasons outlined in paragraph 9 above, the appropriate agency is unable to comply with the request for help then this is a matter for the education authority to pursue with the particular appropriate agency. It is the education authority which must provide (or arrange for the provision of) services. For example, if the education authority make a request to an NHS Health Board and the request is refused then it would be for the education authority to either raise a court action to compel the NHS Board to provide the service or, alternatively, to provide the service itself.

Rights of parents, children and young people

12. The Act introduced new rights for parents and young people in 2004. The 2016 Act extended certain of these rights to children who have attained the age of 12 years. Parents, children (attaining 12 years who have capacity) and young people have rights to:

• request the education authority to establish whether their child has additional support needs
• receive advice and information about their child's additional support needs
• request, at any time, a specific type of assessment and/or examination for the purpose of considering the child's additional support needs as well as when the education authority propose to establish whether a child or young person has additional support needs or requires a co-ordinated support plan (or where a plan is being reviewed
• request the use of mediation services (though a child over the age of 12 and under 16 does not have the right to request the use of mediation services) Their views must be sought and taken into account as part of the process of mediation.
• make use of dispute resolution arrangements ^[12] for matters about additional support needs that are specified in regulations - generally matters not eligible to be considered by the First-tier Tribunal for Scotland Health and Education Chamber ^[13] , although the use of these arrangements does not affect the entitlement to refer any matter to the Tribunal
• make a placing request to the education authority requiring them to place the child or young person in a specified school which can include an independent or grant-aided special school if their child has additional support needs
• make a placing request to another education authority for their child to attend a school under the management of that authority (a child over the age of 12 and under 16 does not have the right to make a placing request)
• be informed of the outcome of requests under the Act, reasons why a request is refused and any applicable rights to have a decision reviewed, for example, through mediation or dispute resolution, or referred to the Tribunal or an education authority appeal committee (where it concerns a placing request where there is no related co-ordinated support plan matter and the placing request is not for a special school)
• request the education authority to establish whether their child needs a co-ordinated support planor to review an existing plan
• receive a copy of the co-ordinated support plan, and any amended plan and be asked for their views and have them taken into account and noted in the co-ordinated support plan
• refer to the Tribunal specified matters relating to co-ordinated support plans, appeals against the refusal of placing requests to special schools and failures by an education authority in relation to their duties regarding school to post-school transitions
• have a supporter with them or an advocate to present their case at any meeting with the school or education authority, in connection with the exercise of the education authority's functions under the Act and at Tribunal hearings.
• have access to a free advocacy service in Tribunal proceedings.
• have access to a support service for children over 12 and under 16 and their parents that provides advice, support in discussions with an education authority and advocacy services.

Children's rights

13. Children who have attained the age of 12 years and who have capacity now have similar rights to parents and young people in relation to additional support for learning within school education. The wide set of rights set out above (subject to the exceptions referred to) empowers children as participants in Scottish education in their own regard. The extension of these rights to children over 12 years of age in respect of additional support for learning is subject to safeguards.

Assessment of capacity and consideration of wellbeing

14. The safeguards take the form of an assessment of capacity and a consideration of adverse impact on wellbeing of an individual child who has attained 12 years of age. The assessments have to take place each time a child seeks to exercise a right or have something done in relation to them by an education authority. These assessments require an evidence-based decision to be made in relation to both of these aspects. A child has capacity to exercise their rights in respect of additional support for learning if an education authority is satisfied that the child has sufficient maturity and understanding to exercise the particular right. As well as assessing the child's capacity to exercise a particular right, the education authority is to be satisfied that in doing so there will be no adverse impact to the child's wellbeing.

References to the Tribunal on capacity and wellbeing decisions

15. In the cirumstances where the child or their parents do not agree with the outcome of these considerations, they may refer this to the Tribunal for consideration.

Children's Service

16. New section 31A of the Act requires the Scottish Ministers to secure the provision of a support service to be available and free of chare to the children who have attained the age of 12 and who wish to exercise or are considering exercising relevant rights or whose parents wish to exercise or are considering exercising relevant rights.

17. One of the functions of the support service, advice and information, is already provided nationally by the Enquire service. The Enquire advice and information service (regarding ASL) is delivered to young people (aged 16+) and parents and carers.

18. In addition to this, a new children's service (delivered in partnership with Enquire) will ensure that children aged 12-15 are provided with suitable advice and information (regarding ASL and children's rights) and referred to other services as appropriate to secure their use of their own rights under the 2004 Act as amended

19. The support service will be available, on request and free of charge, to children aged over 12 but who are not yet 16 and in school education, who wish to exercise, or are considering exercising, relevant rights, or whose parents wish to exercise, or are considering exercising, relevant rights.

20. Relevant rights in relation to which children can seek information and advice are:

21. for a child who is aged 12 years, any right which is conferred on the child by the 2004 Act including the right to receive any document and information or the right to give consent in relation to any matter.

22. In relation to the parents of such a child, "relevant rights" means any rights conferred on the parents by or under the 2004 Act.

23. The new children's service will cover:

• Advice and information - to ensure that children are made aware of their own rights and the supports available to help them access their rights.
• Advocacy support - to support children in preparing to use their rights, use their rights and understand the outcome of the use of their rights, or their parents use of rights about them.
• Legal representation - to provide advice and representation in support of children using their rights to make a reference to the Tribunal.
• Children's views - to enable children's views to be sought, as the request of an education authority or Tribunal, or mediation provider, or independent adjudicator, and to be fed into the associated process.