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Section 2: Current ASL Act legislative position
Background
1. The ASL Act came into force in November 2005 with the aim of creating a stronger, better system for supporting children's learning. The ASL Act places duties on education authorities to make adequate and efficient provision for the additional support needs of every child and young person for whose school education they are responsible and who requires additional support for learning. Education authorities must identify, support and review the needs of all children with additional support needs
2. The above duties apply to those children (or young persons) for whom education authorities provide, or are likely to provide, education either directly or indirectly. This means pupils at local authority schools and nurseries, independent special schools where the education authority is meeting the fees, and independent nurseries that are in partnership with the education authority, or places other than schools where the authority is providing school education. Parents are able to formally request the education authority to establish whether their child has additional support needs or requires a CSP.
3. Section 26 of the ASL Act also requires education authorities to publish certain information including their policies, in relation to provision for additional support needs, their arrangements for identifying children and young people with additional support needs and who may require a CSP, and parents' roles.
4. The ASNTS has been established to hear appeals relating to CSPs. Mediation services must be made available free of charge to parents by education authorities to assist in avoiding, or resolving, disagreements between parents and education authorities. Education authorities are required to put in place arrangements to enable parents to resolve certain disputes with their authority through independent adjudication
5. The ASL Act is accompanied by the code of practice- supporting children's learning - which provides guidance on the implementation of the ASL: Act. Those with duties under the Act are under a duty to have regard to the code of practice when carrying out functions under the ASL Act.
6. Section 1(3)(a) of the ASL Act defines 'additional support' as 'in relation to prescribed pre-school child, a child of school age or a young person receiving school education, provision which is additional to, or otherwise different from, the educational provision made generally for children or, as the case may be, young persons of the same age in schools (other than special schools) under the management of the education authority for the area to which the child or young person belongs.'
Placing Requests
7. Schedule 2 of the Act is distinct from the provision relating to placing requests and appeals in the 1980 Act (sections 28A, 28C, 28E to 28G) and relates to placing requests for children or young people with additional support needs. The schedule starts with a duty on the education authority, unless certain circumstances apply, to comply with a parent's (or young person's) request to place the child or young person with additional support needs in a specified school. The request can be for a special school (public or independent) or a mainstream school. If the specified school is an independent special school, in Scotland or elsewhere in the United Kingdom, the education authority must meet the fees and other costs. There are, however, some circumstances where the duty to comply is not applicable.
8. These circumstances include the requirement in section 15 of the Standards in Scotland's Schools etc. Act 2000. That section provides an assumption that education will be provided in a mainstream school unless this would not be suited to the ability or aptitude of the child or young person; or it would be incompatible with providing efficient education to the other children at the mainstream school; or it would result in unreasonable public expenditure. A further circumstance is where the request is for an independent special school, but the education authority can make provision for the child in another school and this school is more suitable, including with regard to cost, than the specified school.
Home/Host issues
9. A child or young person may attend a school under the management of an education authority other than the education authority for the area to which the child or young person belongs. The former education authority is referred to here as the host education authority, the latter the home education authority. The home education authority may enter into arrangements with host education authority, and arrange for that child or young person to be educated in that host education authority, in order that the home education authority can discharge its duties under the ASL Act. In such circumstances, the home education authority is responsible for the school education of the child or young person including being responsible for establishing whether that child or young person requires a CSP, for preparing the plan, as necessary, and for keeping under consideration the adequacy of any plan so prepared.
10. Where a child or young person is attending a school under the management of an education authority outside the child's (or young person's) home area by virtue of a placing request then it is that host education authority which is responsible for the child's school education and for preparing a CSP, should one be required. However, in terms of section 10 of the ASL Act the home authority has a duty to keep under consideration the adequacy of any CSP prepared and not discontinued for any child or young person belonging to its area. It will be for the home education authority to determine how best to carry out that duty having regard to the provision being made for the child or young person including that provided by the host education authority responsible for the school education of the child or young person.
Duty to prepare CSPs
11. A CSP must be prepared for those children or young people with enduring complex or multiple needs that require significant support from both within and outwith education services. The plan will focus on supporting the child (or young person) to achieve learning outcomes and assist the co-ordination of services from a range of providers.
12. Section 9 specifies the duties relating to CSPs. Where it is established that a child or young person does require a CSP, and the education authority is responsible for his/her school education, then the authority must prepare a plan.
13. The plan must record:
- the reasons for the individual's need for additional support,
- the planned outcomes to be achieved that will ensure that the individual benefits from school education,
- the additional support required to achieve these outcomes and who will provide that support,
- the school the individual is to attend,
- the details of the nominated person who will co-ordinate the plan, and
- contact details of a named officer from whom information and advice may be sought.
14. Section 6(2) of the ASL Act states that education authorities must comply with a request from a parent or young person to establish whether the child or young person has additional support needs, or requires a CSP.
15. Chapter 4, paragraph 25 of the code of practice states that education authorities should notify the person making the request under section 6(2) of their decision as quickly as possible but certainly no later than 4 weeks from when the request is received.
16. Section 11(2)(a) of the ASL Act stipulates that before proceeding to establish whether a child or young person requires a co-ordinates support plan, the education authority must notify the child's parents or the young person of this proposal.
17. The ASL Act ( CSP) (Scotland) Amendment Regulations 2005 stipulate that within 16 weeks of its decision to establish whether a CSP is required, the education authority must give a copy of the plan to the parents or young person, or where that authority decides that the child or young person does not require a plan, inform the parents or young person of that decision. In the case of the latter, the authority must also notify the parents or young person or their right of appeal to an ASNTS.
18. Chapter 4, paragraph 37 of the code of practice states that it is expected that an education authority will have reached a decision and notified the parent or young person no later than 4 weeks after informing the parent or young person of the proposal, unless it would be impracticable to do so.
19. Chapter 4, paragraph 38 of the code also states that where an education authority decides that the child or young person does require a CSP then it will have no more than 12 weeks remaining in which to prepare the plan and provide the parent or young person with a copy.
20. The ASL Act ( CSP) (Scotland) Amendment Regulations 2005, regulations 5 and 6 state that the statutory 16 week period ends on the date on which the education authority gives the child's parents or the young person a copy of the completed CSP. This date is the date a copy of the CSP is sent by the education authority.
21. Where an education authority is responsible for the school education of a child or young person then its decision not to comply with a request to establish whether a CSP is required is treated as a decision of the education authority that the child or young person does not require a CSP. In notifying the parents or young person of its decision, they must also notify them of their right to make a reference to an ASNTS.
22. Section 18(3)(c) states that a parent or young person can make a reference to an ASNTS where: it has been decided that the child or young person requires a CSP; it has been decided that the child or young person does not require a CSP; or where it has been established that the child or young person does require a CSP, the education authority fail to prepare a plan by the 16 weeks statutory time limit unless one of the exceptions contained in The ASL Act ( CSP) (Scotland) Amendment Regulations 2005, section 7(1) applies. Section 7(2) stipulates that where one of these exceptions in section 7(1) apply the education authority must notify the parents or young person why the time limit of 16 weeks cannot be met and notify them of the revised date. Section 7(3) notifies that in these circumstances and in any event the time limit cannot exceed 24 weeks
Content of CSPs - The nominated school
23. Among other provision, the CSP must also state the name and address of the school it is intended that the child or young person will attend.
Transfer of the CSP
24. When a child or young person with a CSP moves, without any immediate intention of returning, from the area of one education authority to that of another, the education authority who prepared the CSP must transfer it to the new education authority within 4 weeks from either the date of departure notified on which the child or young person will be moving or, if the child or young person has already left the area, from the date the original education authority becomes aware the move has taken place.
25. From the date of transfer, the CSP is deemed to have been prepared by the receiving education authority. Subject to any review they may initiate, (which they may do immediately if they consider it necessary or expedient as a significant change in the circumstances of the child or young person) the new education authority is bound by the terms of the CSP and the plan must be treated in the same way as any other CSPs prepared for children and young people in their area. Any review will be subject to the provision in section 10 of the Act and in the Regulations.
Reviews of CSPs
26. Section 10 provides for reviews of CSPs. Education authorities have a duty to keep under consideration the adequacy of each CSP. The education authority must therefore review each plan every 12 months. It may be reviewed earlier if there has been a significant change in the circumstances of the child or young person, for example if their needs change or if progress is different from that expected. This will ensure that the information contained in the plan remains up-to-date and relevant, especially the educational outcomes and the support needed to achieve these. Currently, this is the responsibility of the home or residential education authority by reason of the words "belonging to their area" in section 10(1).
27. Parents, or a young person, may also request the education authority to review the plan at an earlier interval than 12 months. The education authority must comply with such a request unless the request is unreasonable.
28. Where a host education authority prepares a CSP for a child or young person belonging to the area of another education authority then it should notify the home education authority that it has done so, and should provide that education authority with such information as the home education authority requests in order to enable it to carry out their duties under section 10 of the Act. It is currently for the home education authority to determine how best to carry out that duty having regard to the provision being made for the child or young person, including that provided by the host education authority responsible for the school education of the child or young person. (Chapter 4(8) Code)
29. Where an education authority is responsible for the school education of a child or young person then its decision not to comply with a request to establish whether a CSP is required is treated as a decision of the education authority that the child or young person does not require a CSP. In notifying the parents or young person of its decision, it must also notify them of their right to make a reference to an ASNTS.
30. Subsection 11(8) enables the Scottish Ministers to make further provision in regulations about CSPs, including provision about their form, content and the timescales and procedures attaching to managing those plans. It is intended that these regulations will, among other things, provide a template to be used by education authorities for CSPs.
Mediation services
31. Section 15 places a duty on education authorities to arrange for independent mediation services to be provided, free of charge, to parents of children or young people belonging to the area of the authority. Mediation services will seek to avoid or resolve disagreements between the authority and parents or young people concerning functions under the Act. Subsection (2) defines mediation services as being independent if those providing the service have no involvement in the authority's exercise of any other of its functions under this Act. This will allow education authorities to employ mediators directly, for example where there is a wider local authority or public sector mediation service, but any such mediators cannot be involved in any way in providing education services or decisions relating to education provision.
Dispute resolution
32. Section 16 enables the Scottish Ministers, by regulations, to require education authorities to put in place arrangements to resolve disputes between the authority and any parents or young people belonging to the area of the authority. These arrangements must be free of charge to parents. Broadly a parent on behalf of his/her child, or the young person, can ask the education authority to refer a dispute about a matter outwith the jurisdiction of an ASNTS or an appeal committee under the Education (Scotland) Act 1980. Regulations have been made in terms of SSI 2005/501, The Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005.
Additional Support Needs Tribunals for Scotland (the ASNTS)
33. The ASL Act established a new independent and expert ASNTS to consider issues related to CSPs. An ASNTS is subject to the supervision of the Scottish Committee of the Council on Tribunals (to be replaced by the Administrative Justice & ASNT Council) and are headed by a President. ASNTS are constituted as required and hearings are held in locations across Scotland.
34. Section 18 specifies the references that may be made to ASNTS. If an education authority is responsible for providing school education for the child or young person, then the parent of the child or young person (if the young person lacks capacity to do this), or the young person themselves, may make a reference to a ASNTS.
35. Section 18, subsection (3) lists the matters that can be referred to ASNTS. These include:
- decision of an education authority on whether or not a CSP is required or continues to be required,
- failure by an education authority to prepare a CSP in the required time,
- decisions of the education authority about information contained in a CSP relating to:
- the reasons for the individual's need for additional support,
- the planned outcomes to be achieved,
- the additional support required to achieve the planned outcomes,
- who will provide the additional support,
- failure by an education authority to carry out or to complete a review of the CSP by the required time,
- decision of an education authority to refuse to carry out an early review of the CSP,
- decision by the education authority to refuse a placing request.
36. References relating to refusal of a placing request can be made to an ASNTS if, at the time the request was refused, a CSP has been prepared for the child or young person concerned, or if it has been established that a CSP is required or if a reference has been made to an ASNTS over the decision that a CSP is not required.
37. Referrals on refusal of placing requests can only be made once in each 12 months unless the plan has been reviewed in that period or an ASNTS has ordered a plan to be amended or prepared.
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