The Scottish Government

1. This chapter covers a range of miscellaneous provisions in the Act not covered in earlier chapters of the code.

Placing Requests

2. The system relating to placing requests where the child has additional support needs is in Schedule 2 of the Act. Whilst the scheme there is largely like that which operates where the child does not have additional support needs (which is contained in sections 28A to G of the Education (Scotland) Act 1980) there are some notable differences. The more important of these differences are highlighted below. Young persons with additional support needs have the same placing request rights as parents of children with additional support needs. For ease of reference the following refers to parents, but young persons also have these rights in their own name.

3. Parents of a child with additional support needs can make a request:

• for their child to attend any school under the management of an education authority, which includes a nursery school and a partnership provider where an authority has entered into arrangements for other persons to provide pre-school education
• for their child to attend an independent special school or a grant-aided special school in Scotland. Parents make the request to the education authority for the area to which their child belongs. Before doing so, they must ensure that the managers of the school they wish their child to attend are willing to admit their child.

4. Parents are not able to make a placing request under the Act for an independent or grant-aided school which is not a special school.

Elsewhere in the United Kingdom

5. Parents of children who have additional support needs may make a placing request, to the education authority for the area to which the child belongs, for a school in England, Wales or Northern Ireland that makes provision wholly or mainly for children with additional support needs. Again, before doing so, they must establish that the school is willing to admit the child.

Outwith the United Kingdom

6. There is no duty upon the education authority to comply with a request for a child to attend any establishment (whether or not a school) outside the UK. However, section 25 does give the power to an education authority to make such arrangements as they consider appropriate to enable a child or young person with additional support needs to attend an establishment which could be a school outwith the UK. The establishment has to make provision, wholly or mainly, for people having such additional support needs. Education authorities have discretion as to what arrangements they consider appropriate and the power allows an education authority to meet wholly or partly the fees payable, or the travelling, maintenance and other expenses in respect of the child's or young person's attendance at the establishment. They can also meet similar expenses for the parents or some other person, where they consider it to the advantage of the child or young person that one or other of the parents or some other person should be present, during the time the child or young person is attending the establishment,

Costs of placement

7. When a pupil with additional support needs attends a school, which is not an education authority school, as a result of a placing request, the education authority must meet the fees and other necessary costs of the placement.

Timing of placing requests

8. Parents of children with additional support needs can make a placing request at any stage of a child's education. The authority must notify them of that right where a child is due to start at one of its schools, or where the authority propose that the child should, for any reason, be moved to a new or different school. An education authority should invite parents to take part in consultations leading to the school placement for children with additional support needs. They should also provide parents with the opportunity to visit the school or schools proposed.

Rights of young people

9. Young people have the same rights to make placing requests on their own behalf as parents have for their children. Where the education authority are satisfied that a young person is not capable of making a request then the young person's parents have the right to make a placing request for the young person.

Grounds for refusal of placing requests

s15 2000 Act

10. An education authority must comply with a placing request unless one or more or a number of the exceptions contained in paragraph 3 of Schedule 2 to the Act apply. For example, an education authority may refuse a request if the specified school is a special school, and for the authority to place a child there, would cause it to be in breach of its duty to provide mainstream education.

11. A request may be refused if to comply involves significant expenditure on extending or otherwise altering the accommodation or facilities at the school. In refusing a request under these grounds, an education authority would have to act reasonably in assessing what amounts to significant expenditure. For a complete list of all the potential grounds of refusal, users of the code should have regard to the provisions in paragraph 3 of Schedule 2 of the Act.

Refusal of request involving a school not under the management of an education authority

12. Additionally, an education authority do not have to comply with a placing request for an independent, or grant-aided, special school in Scotland (or a school in England, Wales or Northern Ireland making provision for children or young people with additional support needs) where, for example:

• the child does not have the additional support needs requiring the education or special facilities normally provided at the school
• the authority are able to make alternative provision for the child (which may or may not be in one of their schools) and it is not reasonable to place the child or young person in the specified school, having regard to both the respective suitability and cost of the provision for his or her additional support needs there and in the school which she or he would otherwise attend and has been offered a place
• if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child.

13. In considering the grounds in paragraph 3(1)(f) of Schedule 2 to the Act and whether the individual circumstances of the request justify its use, an authority may wish to consider whether the provision made in the specified school can justify the costs of attendance there.

Power to accept a placing request

14. Schedule 2 gives an education authority the power to accept a placing request notwithstanding the fact that there are the grounds for refusal.

Reserved places

15. An education authority can also refuse a placing request, in certain circumstances, in respect of a child who is resident outwith the catchment area of the specified school. This is where accepting the placing request would prevent the authority retaining places (known as "reserved places") at certain schools for incomers to the area served by the school.

Appeals

16. An education authority must inform parents in writing of their decision on a placing request. Parents or young people can then proceed to appeal, if necessary. In complying with a successful placing request, an education authority should update, where appropriate, the nomination of the school in a child's, or young person's,
co-ordinated support plan.

17. An education authority will be deemed to have refused a placing request made in accordance with Schedule 2 paragraph 2 of the Act if:

• they have not informed the parent or young person in writing of their decision by the 30th April on a request made on or before 15th March for a school placement at the start of the school year in the following August, or
• in the case of any other placing request, on the expiry of the period of 2 months (excluding school holidays), immediately following receipt by the authority of the placing request.

Appeal routes

s18(1)

18. Parents of a child with additional support needs can refer a decision by an authority to refuse a placing request to the education authority appeal committee, set up under the 1980 Act. However, the Act makes specific provision for placing request appeals in which there is an issue relating to the co-ordinated support plan and that co-ordinated support plan related issue has been referred to the tribunal. An appeal against a refused placing request will be referred to the tribunal instead of an education authority appeal committee when:

• a child or young person has a co-ordinated support plan, or
• it has been established that the child or young person requires a co-ordinated support plan but one has not yet been prepared, or
• the education authority have decided that the child or young person does not require a co-ordinated support plan and that decision has been referred to the tribunal by the parents or young person.

Education authority appeal committee

19. An appeal committee set up under Section 28D of the 1980 Act, can confirm or refuse to confirm an authority's decision to refuse a placing request. Where they refuse to confirm the authority's decision, the appeal committee must either require the authority to place a child in the public school specified in the request or require the authority to meet the fees and other necessary costs of a child's attendance at the specified special school. This could be an independent or grant-aided school, a school in England, Wales or Northern Ireland which caters for children and young people with additional support needs or a school where education is provided by the education authority under arrangements made under section 35 of the 2000 Act. The authority must comply with a decision of the appeal committee. Where an appeal committee uphold an authority's decision to refuse the placing request, they must notify the parents of their right to make an appeal to a sheriff.

20. When an appeal committee have not disposed of a placing request appeal and they are made aware by the tribunal that a reference has been made to the tribunal about the refusal of a co-ordinated support plan, the appeal committee must transfer the placing request appeal to the tribunal for consideration. The appeal committee are not required to take any further action until the tribunal's decision on the co-ordinated support plan is made.

21. If the tribunal upholds the education authority's decision that the child or young person does not require a co-ordinated support plan then the placing request appeal is returned to the appeal committee for determination.

22. An appeal committee will be deemed to have confirmed the decision of the education authority if they have:

• failed to hold a hearing within 2 months immediately following receipt by them of the reference
• failed within the period of 14 days immediately following an adjournment of a hearing, to fix a date for a resumed hearing of the reference
• failed to notify the parents or young person who made the reference and the education authority of their decision and the reasons for it within the period of 14 days immediately following the conclusions of the hearing.

Appeals to the Sheriff from an appeal committee

23. A parent who has made a reference to an appeal committee may appeal to the Sheriff against the decision of the appeal committee on that reference. In such a case, the education authority may be a party to the appeal to the Sheriff, not the appeal committee. An appeal must be made by way of summary application and lodged within 28 days from the date of receipt of the appeal committee's decision. The Sheriff may hear an appeal, in the event of a late application, if the parents can show good cause for the delay in submitting the appeal.

24. The Sheriff can confirm or refuse to confirm the authority's decision to refuse a placing request. Where the Sheriff refuses to confirm the authority's decision, the Sheriff must require the authority to place the child in the specified public school requested or require the authority to meet the fees and other necessary costs of a child's or young person's attendance at the specified special school. This could be an independent or grant-aided school, a school in England, Wales or Northern Ireland which caters for children and young people with additional support needs or a school where education is provided by the education authority under arrangements made under section 35 of the 2000 Act. The authority must comply with a decision of the Sheriff. The Sheriff has the power to make an order as to the expenses of an appeal to the Sheriff as she or he sees fit. The judgement of a Sheriff on an appeal is final.

25. When a Sheriff has not yet disposed of a placing request appeal and is made aware by the tribunal that a reference has been made to the tribunal about a decision that the child to whom the appeal to the sheriff relates does not require a co-ordinated support plan, the Sheriff must transfer the placing request appeal to the tribunal for consideration. On being transferred to the tribunal the appeal is to be treated as if it were a reference made to the tribunal under section 18(1) of the Act.

26. If the tribunal upholds the education authority's decision that the child or young person does not require a co-ordinated support plan then the placing request appeal is referred to the appeal committee.

27. Further information and guidance on placing requests, including the various appeal routes described above, can be found at Annex D, in the Placing Requests Regulations and in the resources section.

Publishing information

s26

28. The Act requires an education authority to publish information about a range of specified matters relating to additional support needs. They must also keep that information under review and revise and republish that information as necessary or appropriate. Those specified matters include information about each authority's:

• policy in relation to provision for additional support needs
• arrangements for identifying children and young people with additional support needs and those who may require a co-ordinated support plan
• notification of the role of parents, children and young people in any of the arrangements
• arrangements for monitoring and reviewing the adequacy of additional support for children and young people with additional support needs
• arrangements for independent mediation services, including details of the service and how to access it
• officer(s) from whom parents of children having additional support needs, or young people who have these needs, can obtain further information and advice.

29. Education authorities should also include information on practice for:

• arrangements for support for learning
• the types of support available
• how parents or young people can make requests for assessment
• the management of reviews.

s28

30. The authority should also publish information about its arrangements for resolving disagreements between the authority and parents of children belonging to the area of the authority, or young people belonging to the area of the authority, in respect of any of the authority's functions under the Act. This information should set these arrangements in the overall context of the arrangements which a particular authority has for preventing disagreements arising, and resolving them when they do arise.

31. The Regulations on information to be published further provide that education authorities must also publish information about any NHS Board in their area, or part of the area, and such other recognised agencies or organisations that can provide further support, information and advice to parents and young people that it considers appropriate and where this information is already known to the education authority or is easily obtainable. This could be contact details for the speech and language therapy service, for Social Work Services or for local and national voluntary organisations, including support and advocacy services under section 14 of the Act.

32. The Regulations require education authorities to have published this information within three months of Section 26 of the Act being fully commenced (expected mid November 2005). The Regulations also include requirements on where the information should be published and that it should be available on request in alternative forms such as on audio tape, in Braille or through sign language.

Requests under the Act

33. The Act uses the word "request" in a number of different provisions and the term has been specifically defined. This provision allows authorities to be clear as to the reasons for the requests being made. A "request" is one which is in writing, or another form which can be used for future reference, for example, where the request has been recorded in audio or video format. Where, an education authority refuses a request under the Act, they must inform the person who made the request and provide reasons for their decision. They must also provide details of their arrangements for mediation and/or dispute resolution procedures except where the request is from the managers of an independent or grant-aided school in relation to a child or young person being provided with education there.

34. Where the request is a placing request, the education authority must inform the person who made the request of their right to either refer the decision to an appeal committee, or to the tribunal where appropriate.

35. When education authorities are replying to or informing parents or young people they must do so in writing which could include e-mail if the parent or young person agrees or another form as the parent or young person may require which can be used for future reference. Where a parent or young person has made a "request" in a particular form such as e-mail then the education authority should reply similarly or at least in a form that meets any particular known needs or preference of the parent or young person.