Part 1 Appendix 2

Changes made by The Education (Additional Support for Learning (Scotland) 2009 Act to the 2004 Act

The 2009 Act amendments further strengthen parental rights and place more duties on local authorities. The following information describes the adjustments to the 2004 Act. In addition, this link to the Enquire website provides further clarity – “Successful communication between parents and practitioners is always based on positive engagement and mutual respect. Creating an atmosphere where positive engagement is the norm will benefit all parents and children, producing the type of nurturing environment where learning flourishes. ” Communication Matters an ESRC funded publication

Placing Requests

The amended Act permits parents of children with additional support needs and young people with additional support needs, including those with co-ordinated support plans, to make out of area placing requests.
A parent or young person is able to appeal to the Tribunal following the refusal of the Education Authority to an out of area placing request. This holds true for a child or young person who has a co-ordinated support plan, is being considered for a co-ordinated plan, or in respect of whom the Education Authority have decided does not require a co-ordinated support plan. Where the placing request is to a special school the decision to refuse the request will be referable to the Tribunal whether or not a co-ordinated support plan is involved.
Following the submission of an out of area placing request, parents or a young person are able to access mediation from the potential host authority regarding the placing request.
Following a successful out of area placing request, parents or a young person are able to access mediation and/or dispute resolution from the host authority regarding that authority’s functions under the 2004 Act.
Following a successful out of authority placing request for a child or young person with a co-ordinated support plan, the new host authority is under a duty to seek and take account of information and advice from the Education Authority from which the co-ordinated support plan was transferred. This includes any agencies or persons involved in providing support under the co-ordinated support plan prior to its transfer.
The Act enables the decision of an Education Authority refusing a placing request to a Scottish special school to be referred to the Tribunal. It also allows the decision of an Education Authority refusing a placing request for a place in a school in England , Wales and Northern Ireland which is a school making provision mainly or wholly for children and young people with additional support needs to be referred to the Tribunal whether or not a co-ordinated support plan is involved.
It provides that when hearing a placing request appeal for a place in a special school, the Tribunal has the power to confirm the decision of the authority or overturn the decision of the authority and specify when the placing request should commence and make any amendments to a co-ordinated support plan.
It extends the power of the Tribunal, when considering a placing request appeal, to enable it to specify a timescale for placing the child in the school specified in the placing request.
It ensures that 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.
Where a child is being educated outwith the area in which he or she lives as a result of a successful out of area placing request, it prevents the Education Authority (the host authority) from recovering the cost of providing any mediation and/ or dispute resolution services from the authority for the area in which the child lives (the home authority).
Where a child is being educated outwith his or her home authority as a result of a successful out of area placing request, responsibility for the education of the child or young person and carrying out all the duties under the 2004 Act transfers to the host authority.
Where a child is being educated outwith his or her home authority as a result of arrangements with another authority made or entered into by the authority for the area to which the child or young person belongs, responsibility for the school education of the child or young person remains with the authority for the area to which the child belongs.

Definition of Additional Support

It clarifies the definition of additional support by specifying that it is not limited to support provided in an educational environment

It requires authorities to apply the wider definition of ‘additional support’ to children under school age other than prescribed pre-school children who have additional support needs arising from a disability within the meaning of the Disability Discrimination Act 1 995.

Advocacy, Mediation and Dispute Resolution

This link describes the national advocacy service, Let’s talk ASN, run by Govan Law Centre (GLC) and the charity Kindred, which replaced the Take Note service to assist local education authorities to meet the mediation requirements in the Additional Support for Learning Act.
The Act provides that the Education Authority is required to make arrangements for the provision of independent mediation services which cannot include in-house mediation services.
The Act provides that, where a parent or young person makes an application for dispute resolution the Scottish Ministers may by regulations provide that application must be made, to the Scottish Ministers.
The Act enables Scottish Ministers to make an order specifying certain persons from whom parents and young people can obtain further advice, 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.

Assessment and Examination

It extends the rights of parents and children and young people with additional support needs to enable them to request a specific assessment, such as an educational, psychological or medical assessment at any time.

Looked After Children

It automatically deems all Looked After Children and young people to have additional support needs unless they do not require additional support in order to benefit from education.

Children Under School Age and Additional Support Needs

It provides that if a child under school age (generally under 5 years old), who belongs to the authority’s area, is brought to the attention of the authority as appearing to have additional support needs arising from a disability, then the authority must provide additional support as appropriate.

Provision of Published Information

The Aberdeenshire’s Support Directory for Families can be accessed on our website
It requires Education Authorities to provide parents of children with additional support needs and young persons with additional support needs, for whose education the authority is responsible, with all the information authorities are required to publish under Section 26 of the 2004 Act.
If provides that when carrying out their duties under Section 26 of the 2004 Act, the fest to be used by authorities in establishing whether a young person lacks capacity should relate solely to the young person ‘s ability to understand the information published under subsection 26(1) (d).
If places authorities under a duty to ensure that a summary of the published information is available, on request, from each place in the authority’s area where school education is provided and in any handbook or other publications provided by the school that is 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 the school or the authority for that purpose.
It extends the list of matters on which authorities are required to publish information to include any procedures established for the resolution of disputes.

Transition and Child’s Views

It permits the Tribunal to consider any placing request appeal, where a co-ordinated support plan has been prepared or is being considered, at any time before final determination by an education appeal committee or sheriff.
It extends the types of references that may be made to the Tribunal to include failure by the Education Authority to provide, or make arrangements for the provision of, the additional support contained in a co-ordinated support plan which is necessary for the child or young person to achieve their educational objectives. It also enables the Tribunal to specify a timescale within such action must be taken.
It extends the circumstances in which the decision of an Education Authority to refuse a placing request can be referred to a Tribunal, to include those decisions where an Education Authority has issued their proposal to establish whether a co-ordinated plan is required.
It extends the circumstances in which parents and young persons can make references to the Tribunal consequent on certain procedural failures of the Education Authority.
It extends the jurisdiction of the Tribunal to allow it to consider references in relation to an authority’s failure to comply with its duties in terms of post-school transitions.
It enables Scottish Ministers to make rules to allow a convener sitting alone to consider certain references and allow the Tribunal to review its decisions in certain specified circumstances.
It provides that following a decision of a Tribunal that requires an Education Authority to do anything, the President of the Tribunal will have the power to require the authority to provide him or her with information about the authority’s implementation of the Tribunal decision.
It provides the President of the Tribunal with the power to refer the matter to Scottish Ministers where he or she is satisfied that the authority is not complying with the Tribunal decision.

Availability of Information on Additional Support Needs

It specifies the information that must be collected from Education Authorities and published on an annual basis by the Scottish Ministers. This information must include the number of children and young people with additional support needs for whose school education the authority is responsible, the principal factors giving rise to those additional support needs, the types of support provided and the cost of providing that support.

The following provides a short comparison of The Education (Additional Support for Learning) (Scotland) Acts 2004 and 2009:

2004 Act

2009 Act

The 2004 Act introduced a new system for identifying and addressing the additional support needs of children and young people who face a barrier to learning. The Act sets out how children and young people with additional support needs should be provided for by Education Authorities, supported where necessary, by appropriate agencies. The Act established Additional Support Needs Tribunals for Scotland to hear appeals relating to co-ordinated support plans. The Act introduced more rights for parents and young people,including their right to have more say in the educational provision being made,as well as access to new dispute resolution mechanisms. Parents can request an Education Authority to establish whether their child has additional support needs and whether they require a co-ordinated support plan (CSP). A CSP must be prepared for those with enduring complex or multiple needs that require support from outwith education services. The CSP focuses on supporting the child or young person to achieve learning outcomes and assists the co-ordination of services from a range of providers.

The 2009 Act amends and strengthens the 2004 Act, and clarifies the definition of additional support needs. It deems all Looked After Children to have additional support needs unless the education authority determines otherwise. It increases parental/young person’s rights in respect of access to the Additional Support Needs Tribunals for Scotland (ASNTS) whether or not a CSP is involved. It provides for the ASNTS Advocacy Service. It strengthens the rights of parents and young people,including those with CSPs to make out of area placing requests. It strengthens parental access to mediation and dispute resolution from the host authority following a successful out of area placing request. It strengthens the requirement to seek the child/young person’s view at post school transitions. It deems that authorities must meet requests for a specific assessment and/or examination at any times It requires authorities to collect specified information on additional support needs

The following, with helpful links to specific information, provides a short comparison of Supporting Children’s Learning: Code of Practice 2005 and 2010:

Code of Practice 2005	Code of Practice 2010
Chapter 1 Summary of Additional Support for Leaming Act	Chapter 1 Summary of Additional Support for Learning Act
Chapter 2 Additional Support Needs	Chapter 2 Additional Support Needs
Chapter 3 Meeting Additional Support Needs	Chapter 3 Meeting Additional Support Needs
Chapter 4 Co-ordinated Support Plan	Chapter 4 School Attendance : Rights, Responsibilities and Placing Requests
Chapter 5 Transitions	Chapter 5 Co-ordinated Support Plans
Chapter 6 Working with Children and Families	Chapter 6 Transitions
Chapter 7 Resolving Disagreements	Chapter 7 Working with Children and Families
Chapter 8 General Provisions	Chapter 8 Resolving Disagreements
	Chapter 9 General Provisions
Annex a Links to Other Legislation , Policies and Guidance	Annex a Links to Other Legislation, Policies and Guidance
Annex b Co-ordinated Support Plan Template	Annex b Co-ordinated Support Plan Template
Annex c Features of Mediation	Annex c Making Decisions About Whether or Not the Additional Support is Significant
Annex d Placing Request Routes	Annex d Features of Mediation
Annex e Practice Matrix: Allied Health Professionals and Education Working in Partnership (See also Section 11 Further Information 1 1.1 )