Office of Public Sector Information
(1) In—
(a) establishing in pursuance of any provision of this Act whether any child or young person—
(i) has additional support needs, or
(ii) requires, or would require, a co-ordinated support plan,
(b) establishing in pursuance of a review carried out under section 10 whether any child or young person still requires a co-ordinated support plan,
(c) preparing such a plan for any child or young person, or
(d) determining in pursuance of section 4(1) what provision to make for such additional support as is required by any child or young person having additional support needs,
the education authority must comply with the duty described in subsection (2).
(2) That duty is a duty to—
(a) seek and take account of relevant advice and information from such appropriate agencies and other persons as the education authority think appropriate,
(b) subject to subsection (3), seek and take account of the views of—
(i) in the case of a child, the child (unless the authority are satisfied that the child lacks capacity to express a view) and the child’s parent, and
(ii) in the case of a young person, that young person or, if the authority are satisfied that the young person lacks capacity to express a view, the young person’s parent,
(c) take account of any relevant advice or information provided to the authority by or on behalf of the child or young person concerned, and
(d) take account of any relevant advice and information in the authority’s possession or control by virtue of any of their functions other than their functions relating to education.
(3) In the cases mentioned in subsection (1)(a)(i) and (d), the duty described in subsection (2)(b) applies only in relation to such children and young persons as the authority consider appropriate.
(4) Advice or information is relevant for the purposes of subsection (2)(a), (c) or (d) if it is likely to assist the education authority in doing any of the things referred to in paragraphs (a) to (d) of subsection (1).
(5) Every education authority must—
(a) no later than 12 months before the date on which any child or young person—
(i) having additional support needs, and
(ii) for whose school education the authority are responsible,
is expected to cease receiving school education, or
(b) where the education authority become aware that the child or young person is to cease receiving school education less than 12 months before that date, as soon as reasonably practicable after they become so aware,
comply with the duty in subsection (6).
(6) That duty is a duty to—
(a) request from such appropriate agency or agencies as the authority think fit (if any) such information as the authority consider appropriate concerning any provision which the agency is or, as the case may be, the agencies are likely to make for the child or young person on ceasing to receive school education,
(b) where the authority make a request under paragraph (a), seek the views of—
(i) in the case of a child, that child (unless the authority are satisfied that the child lacks capacity to express a view) and the child’s parent, or
(ii) in the case of a young person, that young person or, if the authority are satisfied that the young person lacks capacity to express a view, the young person’s parent, and
(c) take account of—
(i) any information provided by any appropriate agency or agencies pursuant to a request under paragraph (a),
(ii) any views expressed by the child or young person or the child’s or young person’s parent pursuant to paragraph (b), and
(iii) any provision which the education authority themselves are, in the exercise of any of their functions other than their functions relating to education, likely to make for the child or young person on ceasing to receive school education,
in considering the adequacy of the additional support to be provided for the child or young person during the period before the child or young person ceases to receive school education.
(7) Subsections (5) and (6) are without prejudice to section 4(1)(b).
(1) Every education authority must—
(a) no later than 6 months before the date on which any child or young person—
(i) having additional support needs, and
(ii) for whose school education the authority are responsible,
is expected to cease receiving school education, or
(b) where the education authority become aware that the child or young person is to cease receiving school education less than 6 months before that date, as soon as reasonably practicable after they become so aware,
comply with the duty in subsection (2).
(2) That duty is a duty—
(a) to provide such appropriate agency or agencies as the authority think fit (if any) with the information specified in subsection (3), and
(b) to—
(i) consider what (if any) provision the authority are, in the exercise of any of their functions other than their functions relating to education, likely to make for the child or young person on ceasing to receive school education, and
(ii) for that purpose, take into account any information specified in subsection (3).
(3) The information referred to in subsection (2) is—
(a) information as to the date on which the child or young person is expected to cease receiving school education, and
(b) such other information as the authority consider appropriate concerning the child or young person and the additional support needs of the child or young person.
(4) Every education authority must, when any such child or young person as is referred to in subsection (1) ceases to receive school education, inform such appropriate agency or agencies as the authority think fit of that fact as soon as reasonably practicable.
(5) Information is to be provided under subsection (2)(a) or (4) only with the consent of—
(a) in the case of a child, the child’s parent,
(b) in the case of a young person—
(i) the young person, or
(ii) where the education authority are satisfied that the young person lacks capacity to give consent, the young person’s parent.
(6) The Scottish Ministers may by regulations make provision for the taking by education authorities of specified action in connection with the occurrence or likely occurrence of specified changes in the school education of children and young persons—
(a) having additional support needs, and
(b) for whose school education the authorities are responsible.
(7) Regulations under subsection (6) may, in particular, make provision—
(a) for the disclosure by the authorities of specified information about such children or young persons—
(i) to specified persons or persons of specified descriptions,
(ii) subject to specified conditions,
(b) for such information to be disclosed, or any other action taken, by specified times.
(8) In subsections (6) and (7), “specified” means specified in regulations under subsection (6).
(1) Where, in connection with the exercise of an education authority’s functions under this Act in relation to any child or young person, the relevant person wishes—
(a) to have another person (referred to as a “supporter”) present at any discussions with the authority for the purpose of supporting the relevant person in the course of those discussions, or
(b) another person (referred to as an “advocate”) to—
(i) conduct such discussions or any part of them, or
(ii) make representations to the authority,
on the relevant person’s behalf,
the education authority must comply with the relevant person’s wishes, unless the wishes are unreasonable.
(2) In subsection (1), “the relevant person” means—
(a) in the case of a child, the child’s parent,
(b) in the case of a young person—
(i) the young person, or
(ii) if the authority are satisfied that the young person lacks capacity to participate in discussions or make representations as referred to in subsection (1), the young person’s parent.
(3) Nothing in subsection (1) is to be read as requiring an education authority to provide or pay for a supporter or advocate.
(1) Every education authority must make such arrangements as they consider appropriate for the provision of independent mediation services for the purposes of seeking to avoid or resolve disagreements between the authority and—
(a) parents of children belonging to the area of the authority,
(b) young persons belonging to that area, or
(c) in relation to any such young persons who lack capacity to express a view or make a decision for those purposes, their parents,
concerning the exercise by the authority of their functions under this Act in relation to such children or young persons.
(2) Mediation services are independent for the purposes of subsection (1) if the person providing the services has no involvement in the exercise by or on behalf of the authority of their functions under this Act (apart from this section).
(3) Arrangements made in pursuance of subsection (1)—
(a) must not require any parent or young person—
(i) to refer any disagreement with the authority to the mediation services provided in accordance with the arrangements, or
(ii) to pay any fee or charge for the provision of the mediation services, and
(b) do not affect the entitlement of any parent or young person to refer any matter to a Tribunal.
(4) In this section and section 16, references to the exercise by an education authority of any function include references to a failure to exercise the function.
(1) The Scottish Ministers may by regulations make provision about the resolution of disputes between any education authority and—
(a) the parent of any child belonging to the area of the authority,
(b) any young person belonging to that area, or
(c) in relation to any such young person who lacks capacity to express a view or make a decision for the purposes of resolving such disputes, the young person’s parent,
concerning the exercise by the authority of any of their functions under this Act in relation to the child or young person.
(2) Regulations under subsection (1) may, in particular, make provision—
(a) requiring education authorities to establish a procedure in accordance with the regulations for the resolution of such disputes,
(b) applying to all such disputes or only to such descriptions of such disputes as may be specified in the regulations.
(3) However, such regulations, and any provision made in pursuance of such regulations—
(a) must not require any parent or young person—
(i) to use any procedure established in accordance with the regulations for the resolution of any dispute with an education authority, or
(ii) to pay any fee or charge for using any such procedure, and
(b) do not affect the entitlement of any parent or young person to refer any matter to a Tribunal.
(1) Tribunals to be known as Additional Support Needs Tribunals for Scotland (each referred to in this Act as “a Tribunal”) are to be constituted in accordance with this Act to exercise the functions which are conferred on a Tribunal by virtue of this Act.
(2) There is to be an officer to be known as the President of the Additional Support Needs Tribunals for Scotland (referred to in this Act as “the President”) who is to be an individual appointed by the Scottish Ministers.
(3) The President has such functions as are conferred on the President by virtue of this Act.
(4) Schedule 1 makes further provision about the constitution and procedures of the Tribunals, the appointment and functions of the President and administrative and other matters in connection with the Tribunals and the President.
(5) The Scottish Ministers may by regulations make such further provision in connection with the Tribunals and the President as they think fit.
(1) Any of the persons specified in subsection (2) may refer to a Tribunal any decision, failure or information specified in subsection (3) relating to any child or young person for whose school education an education authority are responsible.
(2) The persons referred to in subsection (1) are—
(a) where the decision, failure or information relates to a child, the parent of the child,
(b) where the decision, failure or information relates to a young person—
(i) the young person, or
(ii) where the young person lacks capacity to make the reference, the young person’s parent.
(3) The decisions, failures and information referred to in subsection (1) are—
(a) a decision of the education authority that the child or young person—
(i) requires a co-ordinated support plan, or
(ii) following a review carried out under section 10, still requires such a plan,
(b) a decision of the education authority that the child or young person—
(i) does not require such a plan, or
(ii) following a review carried out under section 10, no longer requires such a plan,
(c) where it has been established that the child or young person does require a co-ordinated support plan, failure by the education authority to prepare a plan by the time required by regulations made in pursuance of subsection (8)(f)(i) of section 11,
(d) where a co-ordinated support plan has been prepared (and not discontinued) for the child or young person—
(i) any of the information contained in the plan by virtue of subsection (2)(a) of section 9,
(ii) failure by the education authority to carry out a review of the plan as required by subsection (2) of section 10,
(iii) where such a review is carried out, failure by the education authority to complete the review by the time required by regulations made in pursuance of subsection (8)(f)(ii) of section 11, or
(iv) a decision of the education authority to refuse a request referred to in subsection (4) of section 10,
(e) where subsection (4) applies, a decision of the education authority refusing a placing request made in respect of the child or young person.
(4) This subsection applies where, at the time the placing request is refused—
(a) a co-ordinated support plan has been prepared (and not discontinued) for the child or young person,
(b) 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, or
(c) the education authority have decided that the child or young person does not require such a plan and that decision has been referred to a Tribunal under subsection (1).
(5) A decision of an education authority not to comply with a request referred to in section 6(2)(b) made in relation to any child or young person is to be treated for the purposes of this section as a decision of the authority that the child or young person does not require a co-ordinated support plan.
(6) Where, in respect of any child or young person for whom a co-ordinated support plan has been prepared (and not discontinued), any of the information referred to in subsection (3)(d)(i) has been referred under subsection (1) to a Tribunal, a further reference under that subsection in respect of the same information is not competent unless, since the last such reference was disposed of, a review of the plan has been carried out under section 10.
(7) Where a decision referred to in subsection (3)(e) in respect of a child or young person has been referred under subsection (1) to a Tribunal, a further reference under that subsection of such a decision in respect of the child or young person is not competent during the period of 12 months beginning with the day on which the last such reference of such a decision was made, unless, during that period—
(a) a review of any co-ordinated support plan prepared for the child or young person has been carried out under section 10,
(b) any such plan prepared for the child or young person has been amended pursuant to a requirement made by a Tribunal under section 19(4)(b), or
(c) where the last such reference of such a decision was made by virtue of subsection (4)(c), a co-ordinated support plan has been prepared for the child or young person.
(1) This section specifies the powers of a Tribunal in relation to a reference made under section 18.
(2) Where the reference relates to a decision referred to in subsection (3)(a), (b) or (d)(iv) of that section, the Tribunal may—
(a) confirm the decision, or
(b) overturn the decision and require the education authority to take such action as the Tribunal considers appropriate by such time as the Tribunal may require.
(3) Where the reference relates to a failure referred to in subsection (3)(c) or (d)(ii) or (iii) of that section, the Tribunal may require the education authority to take such action to rectify the failure as the Tribunal considers appropriate by such time as the Tribunal may require.
(4) Where the reference relates to information referred to in subsection (3)(d)(i) of that section, the Tribunal may—
(a) confirm the information, or
(b) require the education authority to make such amendment of the information as the Tribunal considers appropriate by such time as the Tribunal may require.
(5) Where the reference relates to a decision referred to in subsection (3)(e) of that section, the Tribunal may—
(a) confirm the decision if satisfied that—
(i) one or more of the grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exists or exist, and
(ii) in all the circumstances it is appropriate to do so,
(b) overturn the decision and require the education authority to—
(i) place the child or young person in the school specified in the placing request to which the decision related, and
(ii) make such amendments to the co-ordinated support plan prepared for the child or young person as the Tribunal considers appropriate by such time as the Tribunal may require, or
(c) where—
(i) the decision was referred to the Tribunal by virtue of the application of subsection (4)(c) of that section, and
(ii) the Tribunal has confirmed the decision of the education authority that the child or young person does not require a co-ordinated support plan,
refer the decision to an appeal committee set up under section 28D of the 1980 Act.
(6) Paragraphs 6 and 7 of schedule 2 apply to a reference made to an appeal committee under subsection (5)(c) as they apply to a reference made to an appeal committee under paragraph 5 of that schedule.
(7) In exercising its powers under this section, a Tribunal must take account, so far as relevant, of any code of practice published by the Scottish Ministers under section 27(1).
(1) The Scottish Ministers may by order extend the categories of decision, failure or information in respect of which a reference to the Tribunal under section 18(1) may be made; and without prejudice to the generality such further categories of decision, failure or information may include—
(a) a decision of the education authority—
(i) that the child or young person has, or does not have, additional support needs,
(ii) that a child or young person has additional support needs of a type that the person making the referral considers are not an accurate reflection of the child or young person’s additional support needs,
(iii) to refuse an assessment request as referred to in section 8,
(iv) as to the person, or to the means used, or to be used, to carry out the process of assessment or examination referred to in section 8,
(b) failure by—
(i) the education authority,
(ii) any person identified in any co-ordinated support plan prepared for the child or young person as a person by whom additional support should be provided, or
(iii) a combination of these persons,
to provide the additional support required by the child or young person.
(2) Any order made under subsection (1) may also include provision to allow the President to reject references to the Tribunal arising from any further category of decision, failure or information referred to in the order without a hearing where the President is satisfied that the reference prima facie raises no substantial issue.
(3) Orders made under subsection (1) may also make such consequential provision as the Scottish Ministers consider necessary or expedient, including provision as to the Tribunal’s powers in relation to any new category of decision, failure or information that may be referred to it.
(1) Either of the persons specified in subsection (2) may appeal on a point of law to the Court of Session against a decision of a Tribunal relating to a reference made under section 18.
(2) The persons referred to in subsection (1) are—
(a) the person who made the reference to the Tribunal,
(b) the education authority concerned.
(3) Where the Court of Session allows an appeal under subsection (1) it may—
(a) remit the reference back to the Tribunal or to a differently constituted Tribunal to be considered again and give the Tribunal such directions about the consideration of the case as the Court considers appropriate,
(b) make such ancillary orders as it considers necessary or appropriate.
Schedule 2 makes provision about placing requests in relation to children and young persons having additional support needs.
(1) Where it appears to an education authority that an appropriate agency could, by doing certain things, help in the exercise of any of the education authority’s functions under this Act, the authority may, specifying what those things are, request the help of that agency.
(2) For the purposes of this Act, each of the following is, in relation to any education authority, an appropriate agency, namely—
(a) any other local authority,
(b) any Health Board, and
(c) any person, or a person of any description, specified for the purposes of this subsection in an order made by the Scottish Ministers.
(3) An appropriate agency must comply with a request made to it under subsection (1) unless it considers that the request—
(a) is incompatible with its own statutory or other duties, or
(b) unduly prejudices the discharge of any of its functions.
(4) The Scottish Ministers may by regulations provide that, where an appropriate agency is under a duty by virtue of subsection (3) to comply with a request made to it under subsection (1), the agency must, subject to such exceptions as may be provided in the regulations, comply with the request within such period as is specified in the regulations.
(5) Where it appears to an education authority that, by doing certain things in the exercise of any of their other functions (whether relating to education or not), they could help the exercise by them of their functions under this Act, the authority must do those things unless they consider that to do so would—
(a) be incompatible with any of their statutory or other duties, or
(b) unduly prejudice the discharge by them of any of their functions.
(1) The Scottish Ministers may make regulations prescribing standards and requirements relating to the conduct of special schools.
(2) Subsection (1) is without prejudice to section 2 (power to prescribe standards etc. for education authorities) of the 1980 Act.
(1) An education authority may make such arrangements as they consider appropriate to enable a child or young person having additional support needs to attend an establishment (whether or not a school) outwith the United Kingdom if that establishment makes provision wholly or mainly for persons having such needs.
(2) Such arrangements may, in particular, include paying, whether wholly or partly—
(a) the fees payable, and any travelling, maintenance and other expenses, in respect of the child or young person’s attendance at the establishment,
(b) where in the opinion of the authority it would be to the advantage of the child or young person if—
(i) one or both of the parents of the child or young person, or
(ii) some other person,
were present with the child or young person at the establishment during the period of the child or young person’s attendance at the establishment, any travelling, maintenance or other expenses of the parent, parents or other person (as the case may be) so present.
(3) This section is without prejudice to sections 49 (power to assist persons to take advantage of educational facilities) and 50 (education of pupils in exceptional circumstances) of the 1980 Act.
(1) Every education authority must—
(a) publish information with respect to the matters specified in subsection (2),
(b) keep that information under review, and
(c) where necessary or appropriate, revise the information and publish that revised information.
(2) The information referred to in subsection (1)(a) is information as to—
(a) the authority’s policy in relation to provision for additional support needs,
(b) the arrangements made by the authority in pursuance of sections 4(1)(b) and 6(1),
(c) the other opportunities available under this Act for the identification of children and young persons who—
(i) have additional support needs,
(ii) require, or would require, a co-ordinated support plan,
(d) the role of parents, children and young persons in the arrangements referred to in paragraph (b),
(e) the mediation services provided in pursuance of section 15(1), and
(f) the officer or officers of the authority from whom—
(i) parents of children having additional support needs, and
(ii) young persons having such needs,
can obtain advice and further information about provision for such needs.
(3) The Scottish Ministers may by regulations make further provision as to the publication of information under subsection (1) including, in particular, provision—
(a) amending subsection (2) so as to add further matters,
(b) as to—
(i) the time or times by which, and
(ii) the form and manner in which,
the information is to be published.
(1) The Scottish Ministers must publish, and may from time to time revise and re-publish, a code of practice providing guidance as to the exercise by education authorities and appropriate agencies of the functions conferred on them by virtue of this Act.
(2) Such a code of practice may, in particular, include provision as to—
(a) the particular circumstances or factors which may give rise to additional support needs,
(b) the identification of complex and multiple factors for the purposes of section 2,
(c) the nature of the additional support referred to in section 2(1)(d),
(d) the nature of the additional support to be provided in pursuance of a co-ordinated support plan,
(e) the arrangements to be made in pursuance of sections 4(1)(b) and 6(1),
(f) the seeking of information, advice and views under section 12,
(g) the arrangements to be made under section 15(1),
(h) the carrying out of the duties under paragraph 2(1) and (2) of schedule 2,
(i) the particular circumstances when those duties do not apply.
Education (Additional Support for Learning) (Scotland) Act 2004