Additional support for learning: statutory guidance 2017

Chapter 1: Summary of the Additional Support for Learning Act

1. This chapter summarises the main provisions of the Act and takes account of the 2009 and 2016 Act amendments, but does not cover all of the Act’s provisions. It is not an authoritative interpretation of the legislation, which only the courts can provide.

2. The Act provides the legal framework for supporting children and young people in their school education, and their families. This framework is based on the idea of additional support needs. This broad and inclusive term applies to children or young people who, for whatever reason, require additional support, in the 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 ^[15]
• have experienced a bereavement
• are affected by imprisonment of a family member
• are interrupted learners
• have a learning disability
• have barriers to learning as a result of a health need, such as fetal alcohol spectrum disorder
• are looked after by a local authority ^[16] or who have been adopted
• 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).

Duties of education authorities

4. The Act imposes various 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
• consider whether each looked after child or young person for whose school education the authority is responsible requires a co-ordinated support plan
• 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 co-ordinated 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), the child’s parent or young person agrees

Powers of education authorities

s5(4)

s7

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.

6. Parents, eligible 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 eligible child, parent or young person with information and advice about the additional support required.

s30

1980 Act

7. Parents may choose to fulfil their responsibility to educate their child ^[17] by having them attend an independent or grant-aided school for which they pay. In these circumstances, managers of grant-aided or independent schools may request the home authority – see glossary, to establish whether a child or young person attending their school has additional support needs 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.

s25

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.

Appropriate agencies

s23

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:

• 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 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 make arrangements 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 eligible children (those who have attained the age of 12 years and who have capacity). Parents and young people have the following rights in full. Eligible children have the same rights except in relation to placing requests and mediation. The rights are 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 (an eligible child 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 ^[18] 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, 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 (an eligible child does not have the right to make a placing request)
• make a placing request to another education authority for their child to attend a school under the management of that authority (an eligible child 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 plan or 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 (an eligible child does not have this right)
• 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

13. In support of this:

• parents and young people have access to independently provided advocacy and legal representation
• Eligible children have access to a children’s service providing advice, advocacy services, legal representation and a service to independently seek their views

Children’s rights

14. Eligible Children now have similar rights to parents and young people in relation to additional support for learning within school education (see above). These empower 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.

15. 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.

16. In some circumstances, children’s parents may be unable to use their rights on behalf of their child. Where a child is an eligible child, the children’s service will support those children who wish to use their rights. Looked after children and young carers may be likely to benefit most from this and should be encouraged and supported whenever possible to use their rights.

Assessment of capacity and consideration of wellbeing

17. 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 must 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. After 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.

18. There is a wide range of assessment information which will support those working in schools and education authorities in reaching conclusions as to whether or not a child has capacity and whether there may be adverse impact on wellbeing. Further information can be found in non-statutory guidance: Extending Children’s Rights- Guidance on the assessment of capacity and consideration of wellbeing.
www.gov.scot/ISBN/9781788515177

References to the Tribunal on capacity and wellbeing decisions

In the circumstances where the child or their parents do not agree with the outcome of these considerations, they may make a reference to the Tribunal. The Tribunal may overturn or confirm the Education authority’s decision. Further information on the Tribunal can be found in Chapter 8.

Children’s Service

19. Section 31A of the Act requires the Scottish Ministers to secure the provision of a support service to be available and free of charge to eligible children who are considering or wish to exercise their rights, or whose parents are considering or wish to exercise their rights in relation to the child.