Additional support for learning: statutory guidance 2017

Chapter 4: School Attendance: Rights, Responsibilities and Placing Requests

Introduction

1. For the purpose of arranging for children to attend schools, local authorities usually divide cities, towns and country areas into school catchment areas and children living in the same catchment area usually attend the same school. Almost all children and young people with additional support needs are educated in their local schools under the management of the education authority responsible for the area to which the child or young person belongs. This is the education authority for the area in which they usually reside with their parents, referred to here as the home education authority. An education authority is required to provide that education in mainstream schools unless certain exceptions apply.

2. Some children with additional support needs may attend schools in the local authority outwith their catchment areas as a result of arrangements made by the authority with the agreement of the parents. For example, children and young people may attend special schools (or special classes or special units) ^[49] or other schools in that local authority because they are better able than the local school to provide school education to meet the child’s or young person’s additional support needs. However, such circumstances are presumed to only arise exceptionally. An education authority is required to take account of the views of children, young people and parents where an education authority determine that despite one of the exceptions in section 15(3) of the 2000 Act ^[50] applying, they still wish to provide education for a child other than in a special school.

3. Section 2(2) of the Standards in Scotland’s Schools etc Act 2000 provides that an education authority must have due regard, so far as reasonably practicable, to the views of children and young people in decisions that significantly affect their education, taking account of the child or young person’s age and maturity. Education authority professionals therefore should not make decisions that affect a child without taking their views into consideration.

4. This chapter considers the following five circumstances under which a child or young person may not be receiving school education in their local school ^[51] .

• the parents may be educating the child or young person at home or may have arranged for the child or young person to attend an independent or grant-aided school
• the home education authority may have entered into arrangements with another education authority to have the child or young person educated in a school under the management of that education authority
• the home education authority may have arranged for the child or young person to be educated in an independent or grant-aided special school, or a school in England, Wales or Northern Ireland providing wholly or mainly for children or young people with additional support needs
• the child may be being educated in a school in another education authority area as a result of a successful placing request made by the parent(s) to that education authority. A young person may have made such a placing request in his/her own right
• as a result of a successful placing request to the home education authority, the child may be being educated in a school (other than the catchment area school) in the home education authority area or in 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 people with additional support needs. A young person may have made such a placing request in his/her own right

Sch 2 para 8

5. Young people can make placing requests on their own behalf unless the education authority are satisfied that they lack the capacity to do so in which case the parents can act on their behalf. Eligible children do not have the right to make placing requests.

6. In considering each of the above circumstances, the focus in this chapter will be on where the responsibility for providing the school education rests when a child or young person is educated at home or in a school outwith his or her catchment area and what procedures are available for the parents or young people to pursue when they have concerns or disputes about the provision available. In particular, the Act provides parents and young people with access to mediation, dispute resolution and the Tribunal in certain circumstances. Eligible children have access to dispute resolution and the Tribunal, but not mediation. While each of these is considered in detail in chapter 8, the following summary is provided here for ease of reference:

• mediation: an education authority must have an independent mediation service in place for disagreements relating to matters concerning the exercise of the authority’s functions under the Act (section 15 of the Act). It allows disputing parties to seek to resolve their differences with the assistance of a mediator acting as an impartial third party. Mediation is free of charge to parents and young people. Eligible children do not share the right to request the use of mediation. However, an education authority must seek and take account of the views of children in respect of matters under mediation. This may be supported by the children’s views part of the Children’s Support Service.
• dispute resolution: the procedure for resolving disputes allows for a formal review of an individual case by an independent third party, external to the education authority, who considers the circumstances leading to the disagreement and makes a report with recommendations for all parties. The referral for dispute resolution is made to the Scottish Ministers and dispute resolution is free of charge to parents and young people and eligible children.
• tribunal: the Tribunal will hear references from parents, and young people on matters relating to co-ordinated support plans, appeals against refusals of placing requests to special schools and school to post-school transitions. Eligible children may make references relating to co-ordinated support plans and transitions, in addition to this, eligible children and parents may make references on matters relating to the authority’s capacity and wellbeing assessments). The Tribunal’s statutory functions, decisions and dealings with its users and the public are independent of national and local government. There is no charge to parents, children and young people and eligible for making a reference to the Tribunal.

An education authority’s functions under the Act

s7(1)

s6(1)(a)

7. A reference to an education authority’s functions under the Act is another way of describing their powers and duties under the Act. The education authority’s powers under the Act are discretionary so the authority may choose to exercise these or not. For example, where parents of a child belonging to the area of an education authority, but for whose education the authority are not responsible, request the authority to establish whether their child has additional support needs, the authority may comply with the request but need not do so. However, duties are mandatory and must be carried out. For example, each education authority must make arrangements to identify from among those children and young people for whose education they are responsible those who have additional support needs.

Parents providing education at home or through making arrangements for attendance at an independent or grant-aided school

8. Section 30 of the Education (Scotland) Act 1980 states that “It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means.” The majority of parents discharge this duty by sending their child to a school managed by the local authority for the area in which they live. However, they may discharge their duties under the 1980 Act by educating their child at home or by making arrangements for him/her to attend an independent or grant-aided school. In those circumstances, the home education authority are not responsible for the child’s education. Usually, the parents would require to meet any costs of their child attending such a school.

9. The Act gives education authorities the following powers which they may or may not choose to exercise (see chapter 3 paragraphs 65-69):

s5(4)

• to help children and young people belonging to their area who have additional support needs (e.g. they could provide support to a child being home educated or attending an independent school)
• to respond to requests from parents, managers of grant-aided or independent schools, eligible children or young people themselves to establish whether children or young people have 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.

Mediation

s15

s7(2) and (3)

s7(7)

s5(4)

10. Parents of children for whose school education an education authority are not responsible have access to independent mediation services through the home education authority in connection with the exercise by it, or failure to exercise by it, of any of its functions as regards those children. Young people have access in their own right. For example, parents of a child at an independent or grant-aided school, for whose school education the authority are not responsible, may request the home education authority to establish whether the child has additional support needs or would require a co-ordinated support plan if the home education authority were responsible for the school education of the child or young person. If the education authority decide to exercise their discretion not to establish either, or both, of these matters then these can be referred to mediation. Equally, if the education authority have exercised their discretionary power, and have, for example, established that the child has additional support needs, then they are obliged to provide the parents with information and advice about the additional support required. Failure to do so could be referred to mediation and/or to the Scottish Ministers under section 70 of the 1980 Act, as a failure to comply with this duty would be a failure to comply with a duty in education legislation. The education authority are not obliged to provide the support so identified but may exercise their discretionary power to do so. However, where they have provided the support and, for example, wish to change it then if the parents disagree with the authority’s decision in relation to the provision of support they may refer the matter to mediation. Eligible children do not have a right to request mediation. However they have the right to express their views and have their views taken account of within mediation.

Dispute resolution

s16

11. Parents and young people have access to mediation, dispute resolution and the Tribunal in certain circumstances. Eligible children have access to dispute resolution and the Tribunal, but not mediation. This is irrespective of whether the authority are responsible for a particular child’s or young person’s school education. However, the matter in dispute must be related to the education authority’s exercise of their functions, or failure to exercise their functions, under the Act and must be one of the specified matters in the Regulations ^[52] . For example, parents of a child at an independent or grant-aided school, for whose school education the authority are not responsible, may request the home education authority to establish whether the child has additional support needs. If the education authority decide to exercise their discretion not to establish the matter then it can be referred to dispute resolution. If the home education authority have established that the child has additional support needs but have not provided the parents with the necessary information about the additional support required then the matter cannot be referred for dispute resolution because failure to provide the information is not a specified matter in the Regulations. However, where the authority have exercised their discretionary power to provide additional support and then fail to provide, or make provision for, the additional support then the matter can be referred to dispute resolution because such a failure is one of the specified matters in the Regulations.

Tribunal

s18(3)
(da)

12. Parental and young people’s appeals against refused placing requests regarding special schools can be referred to the Tribunal. Paragraphs 34-42-below describe the circumstances under which a reference can be made to the Tribunal regarding the refusal of a placing request to the host education authority. Paragraphs 43-53 describe the circumstances under which a reference can be made to the Tribunal regarding the refusal of a placing request to the home education authority.

The home education authority have entered into arrangements with another education authority to have the child or young person educated in a school under the management of that education authority.

13. The home education authority may enter into arrangements with another education authority to have the child or young person, for whose school education they are responsible, educated in a school under the management of that other education authority, referred to here as the host education authority. Typically this situation arises because these arrangements enable the home education authority to fulfil their duty under the Act to 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. It may be that the home education authority lacks a specialist provision (e.g. special school provision or teachers with expertise in a particular aspect of providing for additional support needs) which the host education authority can provide. Or, a particular child or young person may be being looked after away from home and placed with foster parents in another local authority and attending a school in that local authority, and that includes, for example, a child or young person placed with foster parents outwith Scotland.

s29(3A)

14. In all these circumstances, the home education authority retain responsibility for the child’s or young person’s school education even though the child or young person is being educated in a school in another education authority. Decisions about additional support needs are made by considering the provision, whether or not educational, which is additional to, or otherwise different from, the educational provision made generally for children or young people in schools (not special schools) under the management of the home education authority which are responsible for the child’s or young person’s education. The home education authority retain responsibility for identifying and keeping under review the additional support required, for preparing and reviewing co-ordinated support plans where these are required, and for providing mediation and dispute resolution. In addition, the home education authority are responsible for providing a psychological service should this be required but there is nothing to prevent the home authority arranging for the host authority to provide this service should that be more appropriate.

Mediation

15. The home education authority are responsible for providing access to independent mediation should this be required. However, the disagreement for which mediation is requested must relate to the exercise of the home education authority ‘s functions under the Act. For example, a parent may consider that the additional support being provided for the child in the host education authority is inadequate and may request the home education authority to arrange with the host education authority to improve it. Failure on the part of the home education authority to do this could be referred for mediation.

Dispute resolution

16. As with mediation, dispute resolution is provided by the home education authority. The disagreement must relate to the discharge of the home education authority’s functions under the Act and it must be a specified matter as referred to in the Schedule of the Additional Support for Learning (Dispute Resolution) Regulations 2005. In the example, above, since failure to provide, or make arrangements for the provision of, additional support (whether relating to education or not) required is a specified matter, then the parent, eligible child, and young person (where the child or young person has capacity to express a view or make a decision for the purposes of resolving disputes) may access dispute resolution.

Tribunal

17. References to the Tribunal may be made in respect of the decisions, information and failures of the home education authority that have been specified in section 18 of the 2004 Act. In summary, the Act enables the Tribunal to hear references from parents , children and young people (where the child or young person has capacity to make a reference) on matters relating to co-ordinated support plans, school to post-school transitions. Parents and young people can appeal refusals of placing requests to special schools. References to the Tribunal are considered in more detail in paragraphs 34-42 below and in chapter 8.

Child or young person living in England but attending school in Scotland

18. There may be circumstances where a local education authority in England have entered into arrangements with a Scottish local authority to have a child or young person educated in a school under the management of the Scottish local authority. In this scenario the English local education authority retain responsibility for the education of the child or young person and, therefore, none of the provisions of the Act apply.

The home education authority in Scotland may have arranged for the child or young person to be educated in a grant-aided or independent special school, or a special school in England, Wales or Northern Ireland.

19. Alternatively, The home education authority in Scotland may have arranged for the child or young person to be educated in a grant-aided or independent special school, or a special school in England, Wales or Northern Ireland. As in paragraph 14 above the home education authority retain responsibility for the child’s or young person’s school education and are subject to all of the relevant duties in terms of the Act.

Mediation

20. The home education authority remain responsible for providing mediation services as in paragraph 15 above.

Dispute resolution

21. Likewise, the home education authority retain responsibility for providing dispute resolution as in paragraph 16 above.

Tribunal

22. As in paragraph 17 above, where references to the Tribunal are made these would be in terms of the same decisions, information and failures of the home education authority.

The child or young person is being educated in a school under the management of another education authority as a result of a successful placing request made to that authority by the parents or young person.

Placing requests to host education authority

Sch 2

Para 2(1) 2(5) & 8

23. The Act enables parents to make a placing request for their child to attend a school managed by an education authority, other than the authority for the area in which the child lives. The former is referred to as the host education authority, the latter as the home education authority. Young people with additional support needs have the right to make placing requests on their own behalf. Placing requests may be made whether or not children or young people have co-ordinated support plans. It should be noted that the placing request can be made to the host education authority for the child or young person to attend a primary school (including a nursery school), secondary school or special school (including a special class or unit) managed by the host education authority.

s29(3)(a)

24. Where a child or young person is being educated outwith his/her home authority as a result of a successful placing request then responsibility for the child‘s or young person’s school education transfers to the host authority who are then responsible for all relevant duties under the Act. For example, where a child or young person requires provision of a psychological service then it would be the service from the host authority that would be involved.

s1(3)

25. Decisions about additional support needs following a successful placing request are made by considering the provision, whether or not educational, which is additional to, or otherwise different from, the educational provision made generally for children or young people of the same age in schools (not special schools) under the management of the host authority which are responsible for the child‘s or young person’s education.

Recovery of costs

s29(4)

Sch 3 3(4)

26. The Act also provides that references to a child or young person belonging to an area are to be construed in accordance with section 23(3) of the 1980 Act. The provisions of section 23(2) of the 1980 Act on contributions from the home education authority to the host education authority apply as they do within the framework of the 1980 Act. These are where an education authority have provided school education, with or without other services, for any child or young person, belonging to the area of another authority, the host education authority, may, if a claim is made, recover from the home authority such contributions in respect of such provision as may be agreed between the authorities or as the Scottish Ministers may determine. There are two exceptions, however, relating to mediation and dispute resolution (see paragraphs 28, 29 and 30, 31 below).

27. Where the provision relates to additional support needs then it follows from paragraph 25 above that these needs are assessed against the educational provision generally made in schools (other than special schools) for children or young people of the same age in the host authority. It should be noted that following a successful placing request to an education authority there is no obligation on the host authority to provide transport between the child‘s home address and the school in question.

Mediation

s15(1)

s23(2A) (a)

28. Following a successful out-of-area placing request, parents and young people are able to access mediation from the host education authority regarding that education authority’s functions under the Act. Also following the submission of an out-of-area placing request, parents or young people are able to access mediation from the potential host authority regarding the placing request.

1980 Act

29. However, where a child or young person is being educated outwith the area in which he or she lives as a result of a successful out-of-area placing request, the host authority cannot recover the cost of providing any mediation services from the authority for the area in which the child lives (the home authority).

Dispute resolution

s16(1)

30. Following a successful out-of-area placing request, parents, ,young people and eligible children (are able to access dispute resolution from the host education authority in relation to the specified matters in the Additional Support for Learning (Dispute Resolution) Regulations 2005 regarding the authority’s functions under the Act.

s23(2A) (b) 1980 Act

31. However, where a child or young person is being educated outwith the area in which he or she lives as a result of a successful out-of-area placing request, the host education authority cannot recover the cost of providing any dispute resolution from the education authority for the area in which the child lives (the home education authority).

Co-ordinated support plans

s12(3A)

32. Following a successful out-of-area placing request for a child or young person with a co-ordinated support plan, the new host education authority are under a duty to seek and take account of information and advice from the (home) education authority from which the co-ordinated support plan was transferred as well as from any agencies or persons involved in providing support under the co-ordinated support plan prior to its transfer. This ensures that the new host education authority, and the previous education authority responsible for the school education of the child or young person, are in contact and that the new host education authority has all the information necessary from the previous authority and the agencies previously supporting the child or young person. The aim is to make the transition from one education authority to another as smooth as possible. The Co-ordinated Support Plan Regulations ^[53] require that the plan be transferred to the host authority within 4 weeks of the child or young person leaving school education in the home authority, or no later than 4 weeks after they have become aware of the change.

s10(1) and (5A)

33. The duty to keep under review any co-ordinated support plan prepared by the original home education authority transfers to the new host education authority following the successful placing request, since the host authority are responsible for the school education of the child or young person. The host authority must then review the co-ordinated support plan as soon as possible after the date of any transfer of the co-ordinated support plan from the home authority to the host authority

References to the Tribunal

s18(3)

(da)

34. Where an education authority decide to refuse a placing request in respect of a place in a Scottish special school then that decision may be referred to the Tribunal. This reference to the Tribunal applies whether or not a co-ordinated support plan is involved. However, a reference to the Tribunal cannot be made in respect of a refusal to grant a placing request regarding placement in pre-school provision where an authority have an arrangement with an independent provider.

35. A decision of an education authority to refuse a placing request may be referred to the Tribunal where:

s18(4)

• a co-ordinated support plan has been prepared (and not discontinued) for the child or young person
• 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
• no such plan has been prepared but the education authority have issued their proposal to establish whether a child or young person requires such a plan
• The education authority had decided that the child needed a co-ordinated support plan and was in the process of preparing one.
• 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.

Repeat references to the Tribunal

s18(7)

36. References to the Tribunal on the decision to refuse a placing request can only be made once in each 12 month period unless any co-ordinated support plan has been reviewed in that period, or the Tribunal has ordered a co-ordinated support plan to be amended or prepared.

s18(9) to (11)

37. If a placing request had been made within a 12 month period but withdrawn then a further request can be made subject to the Chamber President’s discretion. It is also competent to make a reference to the Tribunal in relation to an education authority decision on child's capacity and wellbeing if it relates to exercising a different right within 12 months.

The Tribunal, sheriff and education authority appeal committee

s18(1) and Sch 2 7(1A)

38. Appeals regarding refusals of placing requests should be made to the Tribunal rather than to the education authority appeal committee or the sheriff where one of the circumstances listed in paragraph 35 applies.

39. A decision made by an education authority appeal committee to refuse a placing request may be referred to the Tribunal if, before the expiry of the time limit for appeal to the sheriff court (28 days), a co-ordinated support plan is involved or being considered.

s18(3)(f)

s18(4)

Sch 2 7(12)

40. If, at any time before the education appeal committee or sheriff has made their final decision on a placing request appeal, a co-ordinated support plan has been prepared, it has been established that a plan is being considered or is required or 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, the appeal is to be transferred to the Tribunal. Any reference transferred back to the sheriff from the Tribunal will be treated as if it were an appeal made directly to the sheriff in the first instance thus ensuring the sheriff has the power to deal with such a reference.

s19(5) (ba) and (d)

41. 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.

42. Where the placing request is made for the child or young person to attend a mainstream school in the host education authority, and none of the circumstances in paragraph 35 apply, then any appeal on the refusal to grant the placing request would be heard by the host education authority’s appeal committee and, thereafter, by the sheriff, if there is an appeal against the decision of the education authority appeal committee. That is, there is no reference to the Tribunal in these circumstances.

Placing request to the home education authority

As a result of a successful placing request to the home education authority, the child or young person is being educated in a school (other than the catchment area school) in the home education authority, in a partnership nursery or in an independent or grant-aided special school in Scotland or a school in England, Wales or Northern Ireland.

Sch 2 para 2(1) & 8

43. The Act enables parents, or young people themselves, to make placing requests for the child or young person to attend a school, other than the catchment area school, in the area of the home education authority. This includes mainstream schools and special schools. In the event of a successful placing request the home education authority may provide transport but are not required to. The grounds for refusing placing requests are set out in the Act.

44. Parents or young people themselves are able to make placing requests to the home education authority for the child (or young person where appropriate) with additional support needs to attend:

• a school under the management of the home education authority
• an independent or grant-aided special school, the managers of which are willing to accept the child or young person

Sch 2 2(2)

• pre-school provision (within the categories for eligible pre-school children – generally for 3 and 4 year olds but also for some 2 year olds where the home education authority have an arrangement with a private provider, normally referred to as a partnership nursery, in that home or host education authority area ^[54]
• a school in England, Wales or Northern Ireland providing wholly or mainly for children or young people with additional support needs, the managers of which are willing to accept the child or young person.

Sch 2

Para 2(2) and (3)

45. The grounds for refusing the placing request are set out in the Act. However, if the placing request is successful then the home education authority are responsible for fees and other necessary costs, such as transport, for the child’s or young person’s attendance at the school.

Mediation

46. Parents and young people are able to access mediation from the home education authority regarding the education authority’s functions under the Act. The views of children in this matter must be sought and taken account of as part of the mediation process.

Dispute resolution

s16

47. Parents, eligible children and young people are able to access dispute resolution from the home education authority in relation to the specified matters in the Regulations ^[55] regarding the education authority’s functions under the Act.

References to the Tribunal

s18(3) (da)

Sch 2 5(1) and 7(1)

48. Where an education authority decide to refuse a placing request in respect of a place in a Scottish special school then that decision may be referred to the Tribunal. Similarly, the decision of an education authority to refuse a placing request in respect of a place in a school in England, Wales and Northern Ireland, which is a school making provision mainly or wholly for children or young people with additional support needs, the managers of which are willing to accept the child or young person, may be referred to the Tribunal. These references to the Tribunal apply whether or not a co-ordinated support plan is involved. However, a reference to the Tribunal cannot be made in respect of a refusal to grant a placing request regarding placement in pre-school provision where an authority have an arrangement with an independent provider (i.e. partnership nursery). In these circumstances any appeal against refusal to grant the placing request would be made to the education authority appeal committee and then sheriff.

s19(4A)

49. When hearing a placing request appeal in respect of a place in a special school, or a school in England, Wales or Northern Ireland, making provision wholly or mainly for children or young persons with additional support needs, whose managers are willing to admit the child, the Tribunal has the power to confirm the decision of the authority or overturn the decision of the authority. It has the power to specify by what date the child or young person should, as a result of a successful placing request, commence attendance at the specified school and make any amendments to any co-ordinated support plan in place.

Repeat references to the Tribunal

s18(7)

50. References to the Tribunal on the decision to refuse a placing request can only be made once in each 12 month period unless any co-ordinated support plan has been reviewed in that period, or the Tribunal has ordered a co-ordinated support plan to be amended or prepared. Similarly, a period of 12 months will have to lapse before another reference can be submitted to the Tribunal regarding a decision to refuse a placing request to a Scottish special school or to a school in England, Wales and Northern Ireland which is a school making provision mainly or wholly for children or young people with additional support needs where any of those circumstances apply.

The Tribunal, sheriff and education authority appeal committee

51. The provisions in paragraphs 35-42 apply.

Pre-school children and cross-boundary provision

52. The duty on local authorities to secure pre-school education applies to all eligible pre-school children in their area. Most eligible pre-school children attend provision in their home education authority. There are cases, however, where parents of pre-school children may request a pre-school place with a partnership provider in a different local authority area. This often occurs when parents travel a distance to work or study and it is more convenient for their child to attend a provision close to their place of work or of study.

s23(3)

53. Parents of children with additional support needs are able to make placing requests, as described in paragraph 43 above, 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 and some 2 year olds) in the host education authority’s area where the home education authority have an arrangement with a private provider, normally referred to as a partnership nursery, in the area of the host education authority. Where the home education authority do not have such an arrangement, then they may approach the potential host education authority requesting their help for the child to attend a partnership nursery which has entered into an arrangement with the host education authority.