Section 5 Legislative Background (Brief Summary)

There is a range of Scottish legislation which underpins provision for children and young people with additional support needs. This includes The Education (Scotland) Act 1980 and The Children (Scotland) Act 1995. And more recently: 1. The Standards in Scotland ‘s Schools Act, 2000 2. The 2009 Education (Additional Support for Learning ) (Scotland) Acts (ie the 2004 Act, as amended) A summary of adjustments from the 2004 to the 2009 Act are summarised in Appendix 2 of Part 1; 3. The Equality Act 2010 4. The Children and Young People (Scotland) Act 2014 1. The Standards in Scotland’s Schools Act, 2000 (Section 15) which came into effect in August 2003, 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, including those with the range of additional support needs,in a mainstream school. 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.

In addition, 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. 2. Following the introduction of The Education (Additional Support for Learning ) (Scotland) Act 2004, ‘the new concept of additional support needs refers to any child or young person who, for whatever reason, requires additional support for learning. Additional support needs can arise from any factor which causes a barrier to learning, whether that factor relates to social, emotional, cognitive, linguistic, disability, or family and care circumstances and learning environment.’ The change in wording from special educational needs to additional support needs signals a general recognition that very many children or young people will require additional support at some stage in their school career/young life. That is, it is not necessarily exceptional to have additional support needs, although in some cases the support needs will be exceptional and will require very special consideration and significant support. Appendix 1 at the end of Part 1 provides further information. The Education (Additional Support for Learning) (Scotland) Act 2004 (as amended in 2009) strengthens parental rights and places more duties on local authorities. The Act also states that Looked After Children should be assumed to have additional support needs unless there is corroborative evidence to prove otherwise. Appendix 2 provides a summary of the 2009 amendments. 3. The Equality Act which took effect in October 2010,clarifies and improves the definition of disability discrimination and will make 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 end long term adverse effect on a person’s ability to carry out normal day to day activities’. This link shows how schools and services must consider how to overcome disability whilst ensuring each child is safe and supported. Indeed, there is an expectation that public authorities should positively discriminate to promote equality through implementing anticipatory duties such as ensuring robust anti-bullying strategies are in place. 4. The Children and Young People Act came into force in April 2015. The Scottish Government has tried to strengthen the rights of children and young people in Scotland by creating new systems to support them and to help identify any problems at an early stage,rather than waiting until a child or young person reaches crisis point. This wide ranging Act also:

increases the powers of Scotland’s Commissioner for Children and Young People;
makes changes to early learning end childcare;
provides extra help for looked after children and young people in care; end
provides free school dinners for children in Primary 1 -3.