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

Chapter Two Children's Rights

Background

7 Scottish Ministers have set the ambition that Scotland is the best place to grow up and bring up children. This ambition requires a positive culture towards children. One where children are welcomed and nurtured. One where we all are alert to their needs and look out for them. Where children are listened to, where their views are heard and their rights protected. They should be respected as people in their own right, with rights to a life that allows them to fulfil their potential.

Legislation

8 Parents and young people were given new rights under the Education (Additional Support for Learning) (Scotland) Act 2004 ("the Act"). The Act also includes children's rights to have their views taken account of, in relation to certain decisions that affect them, this remains the case. Children's rights in education in Scotland were extended by the Education (Scotland) Act 2016, which amended the Act. Eligible children now have rights in respect of additional support for learning in their own regard.

9 In practice, families will require to consider who will use their rights, in the circumstances that rights are being prepared to be used. It is not intended that eligible children and their parents can use their rights on the same issue at the same time, or indeed consequentially (to overturn the earlier effect). It is therefore essential that a decision is taken about whether the eligible child's rights will be used, or the parent's rights will be used in each circumstance. An agreement should be reached about whose rights should be used, particularly in the circumstances where there is disagreement between the eligible child and their parent.

10 Under the Act, as amended, eligible children now have rights to:

• request that the education authority establish whether they have additional support needs.
• receive advice and information about their additional support needs.
• request, at any time, a specific type of assessment and/or examination for the purpose of considering their additional support needs, as well as when the education authority propose to establish whether the child has additional support needs, or requires a co-ordinated support plan (or where a plan is being reviewed).
• agree that information can be shared about them with other agencies to support transition planning
• have their views sought and taken into account as part of the process of mediation.
• make use of dispute resolution arrangements for matters about additional support needs that are specified in regulations ^[2] - generally matters not eligible to be considered by the First-Tier Tribunal's Health and Education Chamber ^[3] , although the use of these arrangements does not affect any entitlement to refer any competent matter to a Tribunal.
• 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 dispute resolution, or referred to a Tribunal.
• request that the education authority establish whether they need a co-ordinated support plan, or to review an existing plan.
• receive a copy of the co-ordinated support plan, and any amended plan, 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, 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 legal representation in Tribunal proceedings.
• have access to a support service for children that provides advice, and information, advocacy services, legal representation and a service to have their views taken independently.

Rights that parents and young people have within the Act that are not extended to children include:

• to request the use of mediation services.
• to make a placing request to the education authority (or appeal that decision to the Tribunal).

Preliminary matters

11 In order to exercise their rights, a child must inform the education authority that they wish to do so. The Act requires that requests are made in writing, or another permanent form, and are able to be referred back to. In writing, includes the use of email or other electronic communication. Other permanent forms may include video and audio recording.

New rights subject to safeguards

12 The extension of these rights to eligible children is subject to safeguards. The safeguards take the form of an assessment of capacity and a consideration of whether there would be an adverse impact on the wellbeing of an individual child. These assessments require an evidence-based decision to be made, in relation to both of these aspects. Education authorities have to be satisfied that the child has the capacity to carry out such actions, under the additional support for learning legislation, and these assessments will be used to decide on a child's capacity, as well as whether exercising such rights will have an adverse impact on their wellbeing. Parents and children should be involved and informed about the assessments carried out by schools (or, as the case may be, the Tribunal). Annex A includes some case studies of examples, when exercising children's rights, assessing capacity and considering wellbeing.

13 The Scottish Government views this extension of rights as becoming part of the day-to-day work of schools. This approach should not lead to increased bureaucracy, a paper filing exercise, or checklist approach that increases pressures on staff.

Ensuring active participation of children in realising their rights and securing their wellbeing

14 Curriculum for Excellence and Getting it right for every child place the child at the centre for purposes of school education and services for children. Getting it right for every child recognises the rights of children and young people, focuses on developing and supporting wellbeing, and builds on the good practice evident in services across Scotland. In order for their progress in wellbeing and successes in gaining the four capacities of Curriculum for Excellence, children need to be active participants in the learning and development in our schools. Their active participation is just as important in making decisions about identification, assessment and provision for additional support for learning provision. Participation in decisions about their rights will prepare them for choices and changes in school education and beyond into post-school life.

15 The active participation of children can be supported by the Children and Young People's Commissioner for Scotland's resource, 7 Golden Rules for Participation. (See resources section)

Sources of support for children, young people (aged 16 and over), parents and carers

16 Young people aged 16 and over with additional support needs and parents of children who have additional support needs can access further information through the Scottish advice service for additional support for learning, Enquire.

17 Eligible children can be supported to use their rights by the Children's Support Service, which will provide; advice, advocacy, legal representation and a service to independently seek children's views. The service is intended to support children to prepare for their use of a right and to understand the outcome of the use of their rights, and their parents use of their rights where appropriate. The service will be in place for the commencement of the requirements of the Act in January 2018.

18 Education authorities are required to provide a range of information about additional support for learning services via their own websites and publications, including school handbooks. In addition, education authorities are required to have a named individual from whom children, young people and parents and carers can seek information about additional support for learning. Enquire provide an online resource which draws this information together for all authorities.