Additional support for learning: statutory guidance 2017

Chapter 9: General Provisions

1. This chapter considers further provision relating to placing requests as well as a range of miscellaneous provisions in the Act not covered in earlier chapters of the code.

Placing Requests

2. The system relating to placing requests where the child has additional support needs is set out in schedule 2 to the Act. Whilst the scheme set out in schedule 2 broadly replicates that which operates where the child does not have additional support needs (which is contained in sections 28A to G of the Education (Scotland) Act 1980) there are some notable differences. The more important of these differences are highlighted below and have been discussed in detail in chapter 4. Young people with additional support needs have the same placing request rights as parents of children with additional support needs unless the education authority are satisfied that they lack the capacity in which case the parents can act on their behalf. For ease of reference the following refers to parents but young people also have these rights in their own name.

3. Parents of a child with additional support needs can make a placing request:

• to the home education authority for their child to attend a school, outwith their catchment area, managed by the home education authority
• to another education authority for their child to attend a school managed by that other education authority
• to the home education authority for their child to attend an independent or grant-aided special school in Scotland or a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and the school makes provision wholly or mainly for children or young people with additional support needs
• to the home education authority for their child to be placed in pre-school provision (within the categories for eligible pre-school children, generally for 3 and 4 year olds, but also some 2 year olds), normally referred to as a partnership nursery, in that home or a host education authority area.

4. School means any school, including a nursery school and a partnership provider where an authority have entered into arrangements for other persons to provide pre-school education. Under the Act parents are not able to make a placing request for an independent or grant-aided school which is not a special school.

Outwith the United Kingdom

s25

5. The Act does give the power to an education authority to make such arrangements as they consider appropriate to enable a child or young person with additional support needs to attend an establishment, whether or not a school, outwith the United Kingdom. The establishment has to make provision, wholly or mainly, for children or young people with additional support needs. However, there is no duty upon an education authority to comply with a request for a child to attend such an establishment. Education authorities have discretion as to what arrangements they consider appropriate and the power allows an education authority to meet wholly or partly the fees payable, or the travelling, maintenance and other expenses in respect of the child’s or young person’s attendance at the establishment. They can also meet similar expenses for the parents or some other person, where they consider it to the advantage of the child or young person that one or other of the parents or some other person was present during the time the child or young person is attending the establishment.

Costs of placement

Sch 2 2(2)

6. When a child or young person with additional support needs attends a school, which is not an education authority school, as a result of a placing request, the education authority must meet the fees and other necessary costs of the placement. Where a child or young person attends a school under the management of a host education authority as a result of a placing request (the host authority is not the education authority in which the child or young person lives – that is the home education authority), then the host education authority may recover certain costs from the home education authority, as described in paragraphs 26 and 27, chapter 4.

Timing of placing requests

7. Parents of children with additional support needs can make a placing request at any stage of a child's education. The authority should notify them of that right where a child is due to start at one of its schools, or where the authority propose that the child should, for any reason, be moved to a new or different school. An education authority should invite parents to take part in consultations leading to the school placement for children with additional support needs. They should also provide parents with the opportunity to visit the school or schools proposed.

Rights of young people

8. Young people have the same rights to make placing requests on their own behalf as parents have for their children. However, eligible children do not have the placing request rights of young people and parents. Where the education authority are satisfied that a young person lacks the capacity to make a request then the young person’s parents have the right to make a placing request for the young person.

Grounds for refusing placing requests

9. An education authority must comply with a placing request unless one or more of the exceptions contained in paragraph 3 of schedule 2 to the Act apply. For example, an education authority may refuse a placing request if the specified school is a special school (or special class or special unit) and for the authority to place a child there would cause it to be in breach of its duty to provide mainstream education ^[107] .

10. A request may be refused if to comply with it involves significant expenditure on extending or otherwise altering the accommodation or facilities at the school. In refusing a request under these grounds, an education authority would have to act reasonably in assessing what amounts to significant expenditure. For a complete list of all the potential grounds of refusal, users of the code should have regard to the provisions in paragraph 3 of schedule 2 of the Act.

Refusal of a request involving a school not under the management of an education authority

11. Additionally, an education authority do not have to comply with a placing request for an independent or grant-aided special school in Scotland (or a school in England, Wales or Northern Ireland making provision for children, or young people, with additional support needs) where, for example, all of the following apply:

Sch 2 3(1)(f)

• the authority are able to make alternative provision for the child’s or young person’s additional support needs (which may or may not be in one of their schools) other than in the specified school (i.e. the school for which the placing request is made)
• it is not reasonable to place the child or young person in the specified school, having regard to both the respective suitability and cost of the provision for his /her additional support needs there and in the school which he/she would otherwise attend and in which a place has been offered.

12. As noted in paragraph 14 below, even where the education authority conclude that the grounds in paragraph 3(1)(f) of schedule 2 to the Act apply, they are still able to place the child or young person in the school requested. In weighing up their decision an education authority will wish to consider carefully whether, for example, any high quality provision made in the specified school can offset the additional costs of attendance there.

Sch 2 3(1)(b)

13. There are also other grounds for refusing such a request, for example, as described in paragraph 9 above or where the school in question is not suited to the age, ability or aptitude of the child.

Power to accept a placing request

14. Schedule 2 gives an education authority the power to accept a placing request notwithstanding the fact that the grounds for refusal provided for in schedule 2, paragraphs 3(1)(a) – (e) exist.

Reserved places

15. An education authority can also refuse a placing request, in certain circumstances, in respect of a child who is resident outwith the catchment area of the specified school. This is where accepting the placing request would prevent the authority retaining places (known as “reserved places”) at certain schools for incomers to the area served by the school.

Appeals on refusal to grant a placing request

16. An education authority must inform parents in writing of their decision on a placing request. Parents or young people can then proceed to appeal where a placing request has been refused. In complying with a successful placing request, an education authority should update, where appropriate, the nomination of the school in a child’s, or young person’s, co-ordinated support plan.

17. An education authority will be deemed to have refused a placing request made in accordance with schedule 2 paragraph 2 of the Act if:

• they have not informed the parent or young person in writing of their decision by 30 April on a request made on or before 15 March for a school placement at the start of the school year in the following August or
• in the case of any other placing request, on the expiry of the period of 2 months immediately following receipt by the authority of the placing request.

Appeal routes

18. Parents of a child with additional support needs can refer a decision by an authority to refuse a placing request to the education authority appeal committee, set up under the 1980 Act. However, the Act, as amended, makes specific provision for appeals against refusals to grant the placing request in which there is an issue relating to the co-ordinated support plan and/or a special school. These issues are considered in chapter 4 but are summarised here. The decision of an authority to refuse a placing request may be referred to the Tribunal where:

• the request is in respect of a special school in Scotland managed by an education authority
• the request is in respect of an independent or grant-aided special school in Scotland or a school in England, Wales or Northern Ireland, making provision wholly or mainly for children or young persons with additional support needs, in all cases whose managers are willing to accept the child or young person
• a co-ordinated support plan has been prepared (and has not been discontinued)
• the education authority have decided that the child or young person does not require such a plan and that decision has been referred to the Tribunal
• no such plan has been prepared but it has been established by the education authority that the child or young person requires such a plan
• the education authority have advised the parents or young person that they intend to establish whether a co-ordinated support plan is required.

19. In the last four circumstances in paragraph 18 above, there may be an appeal against the education authority’s decision to refuse a placing request. Where an appeal against that refusal has yet to be determined, either by the education authority appeal committee or by the sheriff, then it will be transferred to, and considered by, the Tribunal.

Education authority appeal committee

20. An appeal committee, set up, under section 28D of the 1980 Act, can confirm or refuse to confirm an authority’s decision to refuse a placing request. Where they refuse to confirm the authority’s decision, the appeal committee must require the authority to place a child in the public school specified in the request, or, as appropriate, require the authority to meet the fees and other necessary costs of a child’s attendance at the specified special school which could be an independent or grant-aided special school, a school in England, Wales or Northern Ireland which caters for children and young people with additional support needs or a school where education is provided by the education authority under arrangements made under section 35 of the 2000 Act (that is, where the education authority have entered into arrangements with a provider of pre-school education). The authority must comply with a decision of the appeal committee. Where an appeal committee uphold an authority’s decision to refuse the placing request, they must notify the parents of their right to make an appeal to a sheriff or to the Tribunal, as appropriate, as in paragraph 24 below.

s18(3)(f)

Sch 2 7(8) and (9)

21. If any of the last four circumstances in paragraph 18 apply before the education authority appeal committee have made their final determination, the appeal should automatically be transferred to the Tribunal. If the education authority appeal committee have made their decision and within 28 days of that decision, one of the last four circumstances apply, the correct route of appeal would be to the Tribunal rather than the sheriff. The appeal committee are not required to take any further action until the Tribunal’s decision on the co-ordinated support plan is made. However, if the appeal has been made to the sheriff and it has not been disposed of then the sheriff must transfer the appeal to the Tribunal.

s19(5) (ba) and (d)

22. While the Tribunal has the discretion to transfer a placing request decision back to the education appeal committee or sheriff, where it has been decided that no co-ordinated support plan is required, it is anticipated that in the majority of cases the Tribunal will make a decision on the placing request reference.

23. An appeal committee will be deemed ^[108] to have confirmed the decision of the education authority if they have:

• failed to hold a hearing within 2 months immediately following receipt by them of the reference
• failed, within the period of 14 days immediately following an adjournment of a hearing, to fix a date for a resumed hearing of the reference
• failed to notify the parents or young person who made the reference and the education authority of their decision and the reasons for it within the period of 14 days immediately following the conclusion of the hearing.

Appeals to the sheriff from the appeal committee

24. A parent who has made a reference to an appeal committee may appeal to the sheriff against the decision of the appeal committee on that reference. In such a case, the education authority, not the appeal committee, may be a party to the appeal to the sheriff. An appeal must be made by way of summary application and lodged within 28 days from the date of receipt of the appeal committee’s decision. The sheriff may hear an appeal, in the event of a late application, if the parents can show good cause for the delay in submitting the appeal.

25. The sheriff can confirm or refuse to confirm the authority’s decision to refuse a placing request. Where the sheriff refuses to confirm the authority’s decision, the sheriff must require the authority to place the child in the specified public school requested or to meet the fees and other necessary costs of a child’s attendance at the specified special school in England, Wales or Northern Ireland as appropriate. The authority must comply with a decision of the sheriff. The sheriff has the power to make an order as to the expenses of an appeal to the sheriff as she or he sees fit. The judgement of a sheriff on an appeal is final.

26. The circumstances under which appeals are transferred from the education authority appeal committee or the sheriff to the Tribunal, and from the Tribunal to education authority appeal committee or sheriff, are considered in chapter 4 paragraphs 38-42.

Publishing information

27. The Act, as amended, requires an education authority to publish information about a range of specified matters relating to additional support needs. Those specified matters include information about:

• the authority’s policy in relation to provision for additional support needs

s26(2)

• the authority’s arrangements for identifying children and young people with additional support needs and those who may require a co-ordinated support plan together with the particular additional support needs of those so identified
• the role of parents, children and young people in any of these arrangements
• the arrangements for monitoring and reviewing the additional support needs of, and the adequacy of additional support provided for, each child and young people with additional support needs
• arrangements for independent mediation services, including details of the service and how to access it
• procedures for dispute resolution, including details of the service and how to access it
• the officer(s) in the authority from whom parents of children having additional support needs, eligible children, or young people who have these needs, can obtain further information and advice
• information about any NHS Board in their area or part of the area from whom parents of children having additional support needs, or young people who have these needs, can obtain further information and advice
• such other recognised agencies or organisations that can provide further support, information and advice to parents and young people that it considers appropriate, including information about support and advocacy
• any other persons specified in an order made by the Scottish Ministers from whom parents and young people can obtain further advice, information and support in relation to the provision for additional support needs, including information about support and advocacy.

28. Education authorities should also include information on practice for:

• the management of reviews
• arrangements for support for learning
• how parents or young people can make requests for assessment
• the types of support available.

29. The authority should also publish information about its arrangements for resolving disagreements between the authority and parents of children belonging to the area of the authority, or children and young people belonging to the area of the authority, in respect of any of the authority’s functions under the Act. This information should set these arrangements in the overall context of the arrangements which a particular authority has for preventing disagreements arising, and resolving them when they do arise. All of this information should be provided in a range of easily accessible formats.

s26(2)(g) and (h)

30. The Regulations amend the Act and require that education authorities must also publish information about any NHS Board in their area or part of the area and such other recognised agencies or organisations that can provide further support, information and advice to parents and young people that it considers appropriate and where this information is already known to the education authority or is easily obtainable. This could be contact details for the speech and language therapy service, for social work services or for local and national voluntary organisations, including support and advocacy services under section 14 of the Act.

Availability of information

31. The Regulations also state that the information should be available on request in alternative forms such as on audio tape, in Braille or through video recording so that sign language, such as British Sign Language can be used to provide information. Voluntary organisations are often in a good position to provide advice about developing, publishing and disseminating information in accessible formats.

32. Education authorities must also keep that information under review and revise and publish that revised information as necessary or appropriate.

s26(1)(d)

33. The Act, as amended, requires education authorities to provide all parents of all children with additional support needs, all such eligible children and young persons with capacity to understand, for whose school education the authority are responsible, with all the information authorities are required to publish as noted in paragraph 27 above. Where the authority are satisfied that the child or young person lacks capacity to understand the information then the information should be made available to the young person’s parent. It is for each individual authority to decide how to meet this requirement but having the information set out in one handbook, website, an app or available on a pen drive may be ways to meet this requirement effectively and efficiently.

s26(1)(e)

34. Authorities are under a duty to ensure that a summary of the information published under section 26 of the 2004 Act is available, readily and free of charge, 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. School in this context includes nursery schools and other pre-school education providers.

s26(1)(e)

35. The Act, as amended, requires education authorities to provide this 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.

s26(2)(i)

36. The Act, as amended, enables the Scottish Ministers to make an order specifying certain persons from which parents, eligible children and young people can obtain advice, further information and support in relation to the provision for additional support needs, including support and advocacy services as referred to in section 14 of the 2004 Act and places education authorities under a duty to publish information as to those persons. In broad terms, the Act allows the Scottish Ministers to name national bodies providing these services and information about these bodies would then have to be included in the information published by the authorities. The Additional Support for Learning (Sources of Information) (Scotland) Order 2016 specifies ‘Children in Scotland: Working for Children and Their Families, trading as Enquire‘, ‘The Scottish Independent Advocacy Alliance Limited’ and Govan Law Centre Trust.

Requests under the Act

s28

37. The Act uses the word “request” in a number of different provisions and the term has been specifically defined in section 28. This provision allows authorities to be clear as to the reasons for the requests being made. A “request” is one which is in writing, or another form which can be used for future reference, for example, where the request has been recorded in audio or video format. The reasons for making the request must be given. Where, an education authority refuse a request under the Act, they must inform the person who made the request and provide reasons for their decision. They must also provide details of their arrangements for mediation and/or dispute resolution procedures except where the request is from the managers of an independent or grant-aided school in relation to a child or young person being provided with education there.

38. Where the request is a placing request, the education authority must inform the person who made the request of their right to either refer the decision to an appeal committee or to the Tribunal where appropriate.

39. When education authorities are replying to, or informing, parents, eligible children or young people, they must do so in writing which could include e-mail if the parents, eligible children or young person agree, or another form as the parents or young person may require which can be used for future reference. Where a parent, eligible child or young person has made a “request” in a particular form such as e-mail then the education authority should reply similarly or at least in a form that meets any particular known needs or preference of the parent, eligible child or young person.

Collection of data on additional support needs

s27A

40. The Additional Support for Learning (Collection of Data) Regulations 2017 requires the Scottish Ministers to collect from education authorities, and to publish annually, specified information about additional support needs. That includes information about:

• the number of children and young people with additional support needs for whose school education the authority are responsible
• the principal factors giving rise to the additional support needs of these children and young people
• the types of support they are provided with, and;
• the cost of providing that support

41. Annex (F) includes links to each of the Annual Reports to Parliament monitoring the implementation of the Act.