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Dear Sir/Madam

EDUCATION (ADDITIONAL SUPPORT FOR LEARNING) (SCOTLAND) ACT 2004

The purpose of this circular is to provide guidance on certain aspects of the legislative framework associated with the implementation of the Education (Additional Support for Learning) (Scotland) Act 2004 [referred to here as 'the 2004 Act']. In particular, the circular provides advice on:

• the transitional arrangements for those children and young people with a Record of Needs at commencement of the Act on 14 November 2005;
• the effect of the Transitional and Savings Provisions Order 2005 ¹, which covers appeals relating to Records of Needs which are extant at commencement of the Act, and to placing requests made in respect of recorded children;
• the effect of the Placing Requests and Deemed Decisions Regulations 2005 ²;
• school handbooks; and
• increased level of funding to education authorities for 2006-08.

Relevant Scottish Statutory Instruments can be found on the website: http://www.opsi.gov.uk/legislation/scotland/s-200505.htm. Copies of the Executive Notes that provide more detail about the policy underpinning the Order and Regulations can also be found on this web link. It should be noted that the Additional Support Needs Tribunal Rules will be superseded by a No 2 Instrument.

Reference should also be made to the code of practice which has been distributed widely and which is available on the website: http://www.scotland.gov.uk/Publications/2005/08/15105817/58187 .

Please ensure that the clerk to the education authority appeal committee is aware of this circular and Schedule 2 of the 2004 Act.

Further advice will follow in respect of the arrangements for dispute resolution by independent adjudication and with regard to completing co-ordinated support plans.

Status of guidance

This circular and accompanying annexes are intended to provide education authorities with further advice on the new legislative framework. However, they do not provide an interpretation of the law which is ultimately a matter for the courts. It is for education authorities to take advice from their own legal advisors as to the requirements of the legislation.

Transitional arrangements

Education authorities must, within 2 years of the date of commencement of the 2004 Act, 14 November, 2005, establish whether children and young people for whose school education they are responsible, and who, immediately before the commencement date had a Record of Needs, require a co-ordinated support plan (2004 Act, section 30(3)). Until the responsible education authority reach their decision, the 2004 Act requires the education authority to ensure that the provision being made for the recorded child or young person is no less than the provision which was made for the child or young person immediately prior to the commencement of the Act (2004 Act, section 30(4)). The 2004 Act also provides that a recorded child or young person is to be taken to have additional support needs for the purposes of the Act. These requirements of section 30 of the 2004 Act are explained in more detail in Annex A.

Transitional and Savings Provisions Order 2005

Provision has been made in the Education (Additional Support for Learning) (Scotland) Act 2004 (Transitional and Savings Provisions) Order 2005 to allow Records of Needs appeals and placing requests, in respect of recorded children or young people, made under the 1980 Act before commencement of the 2004 Act, to continue to be considered and determined by the Scottish Ministers, an appeal committee or a sheriff, as appropriate, depending on the nature of the appeal. Time limits apply to references that are made to the appropriate body after commencement. After these time limits, appeals made under the 1980 Act will no longer be competent and the provisions of the 2004 Act will apply instead.

The Order, which also commenced on the 14 November, will change the effect of decisions on Records of Needs and placing request appeals made before commencement or within the transitional period thereafter and will change how these decisions are implemented by education authorities. The effect of the Order is explained in more detail in Annex B.

For ease of reference, Annex C provides information about the purpose and content of parts of the Record of Needs that are most relevant to this circular and to Annexes A and B.

Placing Requests and Deemed Decision Regulations 2005

These Regulations relate to Schedule 2 of the 2004 Act. They make provision for deeming decisions to have been taken by education authorities or appeal committees, established under section 28D of the Education (Scotland) Act 1980, where those bodies have not reached a decision in relation to a placing request reference by the dates, or within the periods, prescribed in these Regulations. A deemed decision enables the person making the placing request to proceed to the next stage of the appeal process under the 2004 Act by making a reference to an appeal committee, or by an appeal to a sheriff.

School handbooks

Under paragraphs 1 and 2 of the Schedule to the Education (School and Placing Information) (Scotland) Amendment, Etc., Regulations 1993 ³ which amend the 1982 Regulations, schools are required to publish information in school handbooks about the types of special educational needs catered for, the school policy in relation to special educational needs and the numbers of pupils with Records of Needs. From the commencement of the 2004 Act, the term special educational needs will no longer be used and so these Regulations will require to be changed. However, it will not be possible to change them prior to 15 December when school handbooks require to be available. The intention is to bring forward amendments to the Regulations in time for the updated school handbooks in December 2006. In the meantime, schools may wish to consider using an addendum slip or other similar means to indicate in their school handbooks information on their policy and provision for additional support needs.

Funding for 2006-08

As you will be aware from my letter of 20 August 2004, Ministers allocated £8 million in 2004/05 and £9.5 million in 2005/06 to assist local authorities to prepare for implementation of the above Act. Ministers have now agreed to continue implementation funding for the next two financial years at an increased level of £12.5 million per year to local authorities. In line with the increased flexibility of the National Priorities Action Fund, it is for authorities to decide how the additional £3 million funding should be used in the light of local circumstances. It should be noted that the £3 million per annum which was made available to NHS Boards to prepare for implementing the Act over 2004/06 will not continue into 2006/07. Therefore, you are encouraged to consider how the additional funding can be used to promote collaborative working with local NHS Boards and to build on the implementation work carried out by the Boards so far. Further details are provided in Annex D.

Yours sincerely

MIKE GIBSON
Head of Additional Support Needs Division

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