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ANNEX B: TRANSITIONAL AND SAVINGS PROVISIONS ORDER 2005

This annex is intended to provide education authorities with advice on the Transitional and Savings Provisions Order 2005. 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 and secondary legislation in particular cases.

Records of Needs appeals

Appeal against an education authority's decision not to open a Record of Needs

1. If, following commencement of the 2004 Act, the Scottish Ministers overturn an education authority's decision made before commencement not to open a Record of Needs for a child or young person then that child or young person will be taken to have been a recorded child immediately prior to commencement. An education authority will not, however, be required in practice to prepare a Record.

2. Such a child or young person will be taken to have additional support needs under section 30(2) of the 2004 Act. An education authority must therefore ensure that adequate and efficient provision is made for the child's or young person's additional support needs, and that the additional support needs and the support provided are kept under consideration. The provisions of section 30, subsections (4) and (5), as outlined in Annex A, will not apply to children and young people for whom a Scottish Ministers' determination after commencement has been that a Record of Needs should be opened. This is because the education authority would not have been making provision as referred to in section 30(4).

3. If the Scottish Ministers uphold the education authority's decision that a Record of Needs is not required then no further action is required by the education authority in respect of a Record of Needs and the child or young person is not recorded for the purposes of the 2004 Act and section 30 in particular. Education authorities will wish to consider whether the child may have additional support needs in terms of section 1 of the 2004 Act.

Appeal against an education authority's decision to open a Record of Needs

4. After commencement on the 14 November, an appeal committee will not refer an appeal made by a parent or young person against an education authority's decision to open a Record of Needs to the Scottish Ministers. Instead, under the terms of the Order, the appeal committee will direct the education authority to discontinue the Record of the child or young person. The child or young person will not be taken to be a recorded child or young person for the purposes of section 30(1)(b) of the 2004 Act. The education authority will wish to consider whether the child may have additional support needs in terms of section 1 of the 2004 Act and what duties may be applicable under the 2004 Act.

Appeal against the terms of a Record of Needs

5. If the Scottish Ministers decide that the terms of the summary of impairments giving rise to special educational needs and/or the statement of special educational needs in a child's or young person's Record require to be amended, that decision will be taken to have amended the Record as at commencement in terms of regulation 6. An education authority will not have to amend the Record, but will be required to keep a copy of the decision with the Record as if it were part of it. The Order also requires an education authority to keep the Record, for reference purposes only, for a period of five years from commencement on the 14 November i.e. until the 13 November 2010 in terms of regulation 9 of the Education (Record of Needs) Regulations 1982, as amended by regulation 9 of the Order.

6. As the child or young person had a Record of Needs and provision was being made for them under section 62(3) of the 1980 Act, prior to commencement, all the provisions of section 30 of the 2004 Act will apply to them as outlined in Annex A. Consideration will, however, have to be given to the Scottish Ministers' decision on the terms of the Record and the fact that this may indicate that there has been a significant change in the child's or young person's additional support needs affecting the appropriateness of the provision being 'preserved' ( see Annex A). As a result, an education authority may wish to review the provision being made as a matter of good practice.

Appeal against the nominated school in the Record of Needs

7. If an appeal committee has received an appeal against the school nominated in a Record of Needs or has received one within 28 days of the decision of the education authority to refuse the placing request or, on good cause being shown after 28 days but, within the 60 days after commencement and considers that it cannot reach a decision without a determination by the Scottish Ministers on the terms of the Record, it will still be able to make a reference to the Scottish Ministers under the Order.

8. The effect of the Scottish Ministers' decision will be the same as that described under Appeal against the terms of a Record of Needs. The appeal committee should take account of the Scottish Ministers' determination on the terms of the Record of Needs when concluding their consideration of the nominated school appeal.

9. If the appeal committee refuse to confirm the education authority's decision as to the nominated school then the education authority will have to comply with the appeal committee's decision and place the child or young person accordingly. The school to be attended will be taken to have been the provision, or part of the provision, being made for the child or young person immediately before commencement. This provision will become part of the provision "preserved" under section 30(4) of the 2004 Act.

Records of Needs appeals currently awaiting determination by Scottish Ministers

10. The Scottish Executive will be writing to the parents who currently have Records of Needs appeals awaiting determination by the Scottish Ministers to advise them of the changes that will be brought about by the Order and what it will mean for them. The relevant education authorities and appeal committees will also be notified.

Time limits

11. The 60 day cut off for lodging an appeal applies to the above decisions apart from the Record of Needs appeals currently awaiting determination by the Scottish Ministers. The 60 days does not apply to placing requests made but not decided before commencement either.

Placing requests for children or young people with Record of Needs

12. Education authorities will still have to consider a placing request from the parent of a recorded child if the request is received prior to commencement of the 2004 Act. Similarly, appeal committees will continue to hear any appeals against an education authority's decision to refuse such a placing request. A parent or young person will continue to have the statutory right of appeal to a sheriff, if an appeal committee confirms the education authority's decision, that they would have under the pre-2004 Act legal framework.

13. Where an education authority agrees to a placing request, or an appeal committee or a sheriff refuses to confirm the education authority's decision following an appeal, the school referred to in the placing request will be taken to have been the provision, or part of the provision, being made for the child or young person immediately before commencement. This provision will become part of the provision "preserved" under section 30(4) of the 2004 Act.

14. Where the education authority has not made a decision regarding such a placing request until after commencement, the normal time limits for references to the appeal committee and sheriff will apply as applied before commencement.