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ANNEX A: TRANSITIONAL ARRANGEMENTS
This annex is intended to provide education authorities with further advice on transitional arrangements. However, it does not provide an interpretation of the law which is ultimately a matter for the courts. It is for education authorities to take their own legal advice on the effect of the provisions of the Act in particular cases.
Section 30 of the 2004 Act
1. When the 2004 Act commences, education authorities must, within 2 years, establish whether children and young people for whose school education they are responsible, and who, immediately before commencement had a Record of Needs, require a co-ordinated support plan (2004 Act, section 30(3)). Until the responsible education authority reaches 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 provision referred to is the provision that was made under section 62(3) of the 1980 Act for a recorded child or young person, prior to the commencement of the 2004 Act, and includes provision for special educational needs. In effect this means that, within this 2 year period, there will be no reduction in the provision being made for the child or young person who had a Record of Needs, until such time as the education authority establish (2004 Act, section 30(5)) that:
- the child or young person requires a co-ordinated support plan, or
- the child or young person does not require a co-ordinated support plan, or
- there is a significant change in the child's or young person's additional support needs.
2. Under section 30(2) of the 2004 Act all children and young people who, at commencement of the Act, are recorded are deemed to have additional support needs. Consequently, all the provisions of the Act where they refer to children and young people with additional support needs, and their parents, apply. This means, for example, that parents of children and young people with a Record of Needs (and the young person) on commencement of the Act, have a right to request that the education authority provide them with free mediation services and dispute resolution arrangements; also in determining whether these children or young people require a co-ordinated support plan an education authority must have regard to the full requirements of the Act and the code of practice.
Scenario 1: Co-ordinated support plan required
3. Once an authority have established that a plan is required (subject to reference to a Tribunal as described below) then on the date on which requirement is established the duty to establish under section 30(3) will have been met. This will be an appropriate date in terms of section 30, subsections (4) and (5). That is, if the co-ordinated support plan is, at some point in the future, no longer required (subject to reference to a Tribunal) then the provisions of section 30(4) will not be re-applied.
4. Between the date of the decision that a child or young person requires a plan, (whether this is a result of a direction of an Additional Support Needs Tribunal or not), and the date the completed plan is given to the parents or young person, all education authorities must ensure that adequate and efficient provision for such additional support, as is required by the child or young person, is made as required by section 4 of the 2004 Act. Education authorities will need to consider the circumstances of each case but it would generally be good practice to ensure that this provision is no less than that which had been "preserved" under section 30(4) of the Act until the appropriate date, which in this case is assumed to be the date on which the requirement for a co-ordinated support plan is established (2004 Act, section 30(5)(a)).
5. The decision of an education authority on whether a co-ordinated support plan is required can be referred to an Additional Support Needs Tribunal by a parent or young person. A Tribunal has the power, in circumstances specified in section 18 of the 2004 Act, to either confirm the decision of the authority, or overturn the decision and require the authority to take such action as the Tribunal considers appropriate by such time as the Tribunal may require.
Scenario 2: Co-ordinated support plan not required
6. In circumstances where an education authority establish that the child or young person does not require a co-ordinated support plan, sections 30(4) and 30(5)(b) of the 2004 Act provide that the provision being made for the child or young person must be preserved for a further 2 years from the date that the education authority establish that a co-ordinated support plan is not required. For some recorded children and young people this could require the provision to be made for up to 4 years from the date the 2004 Act is commenced.
7. Parents (or the young person) may refer to a Tribunal the authority's decision that a co-ordinated support plan is not required. Where the Tribunal upholds the authority's decision that a co-ordinated support plan is not required then the authority must continue to ensure that the provision being made is no less than the provision being made immediately prior to commencement. This requirement will continue to apply for a further 2 years from the date that the authority's decision was reached (or unless the child's or young person's additional support needs change significantly). Where the Tribunal does not uphold the authority's decision and a co-ordinated support plan is required, then, from the date of that decision, the duty to preserve the provision made under the Record of Needs ceases and is replaced by the requirements on the education authority under the 2004 Act.
Scenario 3: There is a significant change in the child's or young person's additional support needs
8. In meeting the requirements of section 30, education authorities must also have regard to their duty to make appropriate arrangements to keep under review the additional support needs and the adequacy of the support required to meet a child's or young person's additional support needs. If when doing so, it comes to the attention of the authority that there has been a significant change in the child's or young person's additional support needs, that requires a change in the provision to be made, the effect of section 30(4) and (5) is that the transitional requirement on the education authority under section 30(4), 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 immediately prior to the commencement of the Act, is replaced by the other requirements on the education authority under the 2004 Act. This will be the duty on the education authority in section 4(1)(a) to make adequate and efficient provision for such additional support as is required by each child or young person for whose school education they are responsible.
9. Those who work with the child or young person, including their parents, will be best placed to know whether there has been a significant change in the child's or young person's additional support needs. In reaching a decision, education authorities should take account of the parents' (or young person's) views, the views of the child where appropriate, as well as assessment information and reports available. If an education authority conclude that the child's or young person's additional support needs have changed significantly, they should notify the parent or young person about the changes in needs, what the new additional support needs are, if any, and the provision to be made to support them. Parents and young people should also be advised of their right to access the free mediation and dispute resolution services, arranged by the education authority under the 2004 Act, if they do not agree with the changes to be made.
Previously recorded child or young person moving between education authorities during transition period
10. When a family moves from one authority to another and the first authority have not established whether the previously recorded child or young person requires a co-ordinated support plan, then it would generally be good practice if the first authority provide the parents (or the young person) and the authority to which the child or young person is transferring (if this is known) with a written statement of the provision being made by them immediately before the commencement date (under section 62(3) of the 1980 Act; provision that has been preserved under section 30 of the 2004 Act).
11. The authority into whose area the child or young person transfers are required to maintain this level of provision for 2 years from the date of commencement of the 2004 Act or until they establish (whichever is sooner) whether the child or young person requires a co-ordinated support plan (see paragraphs 3-5 above which apply), does not require a co-ordinated support plan (see paragraphs 6-7 which apply), or whether there is a significant change in the child's or young person's additional support needs (see paragraphs 8-9 which apply).
12. The Education (Additional Support for Learning) (Scotland) Act 2004 (Transitional and Savings Provisions) Order 2005 makes provision for Records of Needs to be preserved, for reference purposes only, for a period of five years from commencement on 14 November 2005 ( see paragraphs 15-16 of Annex B).
13. The first authority will have to transfer the Record of Needs, being preserved for reference only, to the authority to which the child or young person is transferring and will have to comply with the relevant provisions in the Education (Record of Needs) (Scotland) Regulations 1982 for transferring Records of Needs. The receiving authority will have to comply with the provisions in those Regulations for the keeping, disclosing, transfer and the destruction of Records of Needs preserved for reference purposes during the five year retention period.
14. Where the child or young person does have a co-ordinated support plan then in accordance with the requirement of the 2004 Act and the Additional Support for Learning (Co-ordinated Support Plan) (Scotland) Amendment Regulations 2005, the plan transfers with them to the new authority, who can, if they wish, review the plan if the provision in the 2004 Act on review apply in the particular circumstances of the child or young person.
15. Paragraphs 6 and 8 of Chapter 4 of the code of practice provide more information about home/host authority responsibilities where a child or young person attends a school in another education authority's area as a result of a placing request.
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