Additional support for learning: statutory guidance 2017

Introduction

Purpose of the Act

1. The Education (Additional Support for Learning) (Scotland) Act 2004 (“the Act”) ^[1] provides the legal framework for identifying and addressing the additional support needs of children and young people who face a barrier, or barriers, to learning. The Act aims to ensure that all children and young people are provided with the necessary support to help them work towards achieving their full potential. It also promotes collaborative working among all those supporting children and young people and sets out the rights of children, young people and parents within the system. The Act has been subsequently amended by the Education (Additional Support for Learning) (Scotland) Act 2009 (“the 2009 Act”) ^[2] the Children and Young People (Scotland) Act 2014 (“the 2014 Act”) ^[3] and the Education (Scotland) Act 2016 (“the 2016 Act”) ^[4] . ( Annex A provides Links to Other Legislation, Policies and Guidance).

Purpose of the code

2. This is the third edition of the code and replaces all previous versions. This third edition takes account of the amendments in the 2016 Act which extended certain rights to children aged 12 and over ^[5] . It explains the duties on education authorities and other agencies to support children’s and young people’s learning. It provides guidance on the Act’s provisions as well as on the supporting framework of secondary legislation. The code uses the term “the Act” to include, where appropriate, the secondary legislative provisions made through Regulations and includes features of good practice on how these can be applied. It also sets out arrangements for avoiding and resolving differences between families and education authorities. Annex (F) includes links to the annual reports on information and data about additional support needs and the implementation of the Act.

Status of the code

3. Education authorities and appropriate agencies, such as NHS Boards ^[6] , are under a duty to have regard to the code when carrying out their functions under the Act. The code is designed to help them make decisions effectively but cannot be prescriptive about what is required in individual circumstances. Education authorities and appropriate agencies must ensure that their policies, practices and information and advice services take full account of the legal requirements of the Act. The code includes brief case studies and examples of good practice to illustrate some of the processes involved in applying the Act’s main provisions. These do not offer definitive interpretations of the legislation since these are ultimately a matter for the courts.

4. The code is intended to explain the principles of the legislation and to illustrate how the law might apply in certain situations. It is important to an appropriate understanding of this framework that this code of practice is read as a whole. Individual chapters should not be taken out of the context of the whole code or read in isolation from each other and the Act and the related secondary legislation. Chapter 1 provides a summary of the requirements of the Act. There are some issues which the code cannot resolve and which must await the authoritative interpretation of the courts. The code is not intended to be a substitute for taking appropriate advice on the legal implications of particular situations.

Other legislation and policy

5. The guidance in this code should be read alongside other legislation and policy where appropriate. For example, Curriculum for Excellence, Getting it right for every child , Developing the Young Workforce and Hall 4 ^[7] and the Universal Health Visiting Pathway ^[8] have implications for education authorities’ and other agencies‘ support for learning strategies. In particular, Curriculum for Excellence is a curriculum for all and this includes explicitly children and young people with additional support needs. In Curriculum for Excellence every child is entitled to the support they need in order to progress ^[9] . The Act, with its focus on ensuring that children and young people receive the help they need to benefit from education, supports this inclusive ethos.

6. While the guidance in the code outlines links with other legislation and policy, the main purpose of the code is to explain the principles of the Act and how the law may apply in certain situations. While Curriculum for Excellence is a major policy driver in Scottish education it is not a statutory provision. Aspects of the main policy drivers are referred to at points in the code to describe the overall context within which the Act applies but they do not themselves wholly impact directly on the legislative provisions of the Act. It should be noted that it is beyond the scope of the code to provide a full account of the extent of the other policies and their impact on the lives of children and families. A summary of other relevant legislation and policy issues is provided at Annex A. Information about useful services and organisations may be found via the Enquire service finder at http://enquire.org.uk/find-a-service

Who should read the code?

7. Education authorities and agencies involved in advising or supporting children and young people with additional support needs and their families, should encourage and support their employees in gaining knowledge of the content of the code and understanding of its application in their day-to-day work.

8. Parents, children and young people may wish to refer to the code for information and advice on exercising their rights. However, specific guidance is also available for them (as well as practitioners) from Enquire ^[10] , the Scottish advice service for additional support for learning, funded by the Scottish Government.

9. Examples of professionals across agencies who are under a duty to have regard to the code, or others who may find it useful when carrying out duties under other legislation, include:

• Multi-agency planners: policy officers, planners and service managers working in children’s services planning networks across education, health, social care, further education and training.

• Education: education directorate, head teachers, teachers, classroom assistants and support staff, educational psychologists staff in schools and nursery provision, including partner providers for pre-school education.
• Early years and childcare: early years practitioners, early years workers in family centres, practitioners in early learning and childcare establishments and staff delivering out-of-school provision.
• Health: health visitors, public health nurses, school nurses, community child health teams, paediatricians, physiotherapists, occupational therapists, speech and language therapists, other allied health professionals, clinical psychologists, and medical practitioners in paediatrics, general practice and child and family psychiatry.
• Social work: social workers, residential child care staff, support workers, adoption and foster care service staff and social workers with responsibility for child protection and looked after children
• Voluntary sector: staff working in the whole range of children’s services.
• Other agencies: professionals in other agencies who may be involved in integrated assessment teams, for example, childcare fieldworkers, youth workers, Children’s Reporters, police, schools/community liaison team, community workers, staff working in Skills Development Scotland (careers services) and in higher and further education.

Definitions

Eligible pre-school child

10. Child eligible for pre-school provision who is under school age and has not started primary school. Every three and four year old child is entitled to 600 hours of early learning and child care. A child is also an eligible pre-school child if they are 2 years or over and is or has been since their 2 ^nd birthday looked after, the subject of a kinship care order or has or had a guardian appointed under section 7 of the Children (Scotland) Act 1995. “Eligible pre-school child” has the same meaning as in section 47 in part 6 of the 2014 Act. Eligible pre-school children also include 2 year olds, starting from the first term after their second birthday, with a parent in receipt of qualifying benefits; or, the first term after their parent starts receiving qualifying benefits ^[11] .

Eligible Child

11. The term “eligible child” is used throughout the Code 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 Act, and that the education authority (or Tribunal) considers the wellbeing of the child would not be adversely affected by the child exercising their rights.

Young person

12. A young person ^[12] is now defined in the Act as a person who is aged 16 years or over, who is a pupil at a school, and has, since attaining the age of 16 years or over, remained a pupil at that or another school. In practice, it is unlikely that a young person will remain in school beyond their later teenage years. The new definition removes the difficulties which have arisen when a young person has remained in school between the age of 18 and 19 years. Throughout the code the term young people is used instead of young persons, for ease of understanding.

Parent

s135(1)

1980 Act

13. The term “parent” is also defined in the Act as having the same meaning as in the Education (Scotland) Act 1980 (“the 1980 Act”) and includes “guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has care of, a child or young person.”

Education authority

14. Education authority is defined in the 1980 Act as a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994. In practical terms, the education authority and the local authority are the same entity. In general, the code refers to an education authority when considering a local authority’s education functions and to a local authority in respect of functions other than education ones such as social work services.

15. The Act applies generally to pre-school provision which is under the management of the education authority, and made for eligible pre-school children (see glossary). This provision also can include provision where an education authority have an arrangement with another provider, for example, where the authority have ^[13] arranged for children to attend a private nursery under a partnership agreement. In certain circumstances, described in chapter 3, the education authority have a duty to make provision for certain looked after and certain disabled children under the age of 3 years. ^[14]

Disability

16. The meaning of disability, used in the code, is as defined in the Equality Act 2010. This provides that a person has a disability if a person has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day‑to‑day activities.

Looked After Children

17. The Act refers to looked after children within the meaning of section 17(6) of the Children (Scotland) Act 1995 which covers children looked after at home and children looked after away from home.

18. Looked after at home: where the child or young person is subject to a compulsory supervision order made by a Children’s Hearing. The child or young person continues to live in their normal place of residence (i.e. often the family home).

19. Looked after away from home (i.e. away from their normal place of residence): where the child or young person is subject to a compulsory supervision order made by a Children’s Hearing with a condition of residence specifying a place other than the family home, or is provided with accommodation under section 25 (voluntary agreement) of the Children (Scotland) Act 1995 or is the subject of a Permanence Order (Part 2 of the Adoption and Children (Scotland) Act 2007)). The child or young person is cared for away from their normal place of residence, e.g. in a foster care placement, residential/children’s unit, a residential school, a secure unit or a kinship placement.

20. In addition to the above, a child or young person may be the subject of an Interim Compulsory Supervision Order ( ICSO) made by a Children’s Hearing or Sheriff. These are short term measures where the child or young person is considered looked after for the duration of the ICSO.

21. A glossary of terms used is provided at the end of the code.

References in the code

22. The code refers to the Act and its associated regulations. References to the Act are in the margin of each page, for example s1(1)(a) refers to Section 1, subsection 1(a). References to the titles of other legislation are also in the margin of each page.

Further information

23. Further information on the code of practice is available from:

Support and Wellbeing Unit
Scottish Government
Victoria Quay
Edinburgh
EH6 6QQ
Email: ASLCodeofPractice@gov.scot