2. Legislative Requirements

All effective schools adhere to the range of Scottish legislation which underpins provision for children and young people with additional support needs, including those with significant and complex needs. Much of the legislation is mirrored in many other countries, most notably in Australia and New Zealand. The most significant legislation in Scotland includes the following:

The Standards  in Scotland’s  Schools  Act, 2000  (Section 15) which came into effect in August 2003 and introduced  what is now referred  to as the presumption of mainstreaming in relation to pupils with special educational  needs.  This means that the onus is on Education Authorities to place children with additional support needs in a mainstream school.   In addition, The Education (Additional Support for Learning)(Scotland) Act 2004 states that Education Authorities have to take full account of parents’ views in reaching a decision about a placement. (They will also take full account of the advice of all practitioners.) Nevertheless, parents have the right of appeal if they disagree with the placement proposed by the Authority. The Education (Additional Support for Learning) (Scotland) Act 2004 (as amended in 2009) strengthens parental rights and places more duties on Education Authorities.

In recognition of this legislation and in line with best practice, effective schools work very hard to develop a strong and meaningful partnership with parents.  This is particularly the case at times of transition In addition, Scottish schools take account of the principles and practice within the GIRFEC agenda albeit at the time of writing it is not legislated for.   However, this link takes you to information about the Children’s Bill which amongst other matters will take forward the Getting it Right For Every Child (GIRFEC) approach to provide children and young people with access to a ‘Named Person’  from birth to 18 years old who would act as the key, central point of contact; and to a single ‘Child’s Plan’ for those who need one to ensure services are coordinated where necessary to help and support a child or young person.

All good schools work closely with parents to agree appropriate placements.  Clearly the parents of the children and young people who are educated and cared for in a special school have agreed that their children’s needs are most effectively met there and that their children are exceptions to the presumption of mainstream.  Exceptions to this presumption are described legislatively as follows:

  • when education in a school other than a special school would not be suited to the ability or the aptitude of the child;
  • when placement in mainstream would be incompatible with the provision of efficient education for the children with whom the child is being educated, or would result in unreasonable public expenditure.

Equality Act 2010 which took effect in October 2010, clarifies and improves the definition of disability discrimination and makes it easier for individuals to challenge disability discrimination when it occurs.  It strengthens ‘The Disability Discrimination Act, 2005’ which placed greater duties on public authorities to eliminate discrimination and required Authorities to positively discriminate for children and young people with disability. It defined disability as ‘a physical or mental impairment, which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities’.  At the time of writing, the Code of Practice for schools was at consultation stage.

There is good knowledge and a clear understanding of the implications of all this relevant legislation in all good schools. This approach supports and encourages curriculum development as well as stimulates improvements in practice.   It promotes effective partnership work and leads staff to continue to listen carefully to the views of parents and their children. It has supported and encouraged curriculum development as well as stimulated improvement in practice. It has promoted effective partnership work and led staff to continue to listen carefully to the views of parents and their children.

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