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Chapter 3: National Framework
Government Policy
Current Position
1 The Government's discussion paper Special Educational Needs in Scotland, (The Scottish Office, 1998), outlined the national policy framework for the development of provision for special educational needs in Scotland, as follows:
The Government is committed to developing a more inclusive society where every person has the opportunity to develop their skills and to participate in society to the fullest possible extent. This commitment applies fully to children with special educational needs.
An inclusive society must ensure that the potential of each individual is fully developed through education and that their attainment and achievement are valued and respected. It is on the realisation of this potential that inclusiveness depends; an inclusive society and education system will therefore strive to ensure that it creates the range of approaches and opportunities to ensure that this is brought about.
The Government will act to develop and strengthen a policy framework which:
2 There were over 300 responses to this paper. Following the consideration of responses the Government announced a series of actions in November 1998 which included increased financial support of £8 million per year for special educational needs in Scotland. This sum included increased funding for SEN staff development and training, further support to local authorities for speech and language therapy provision and additional help for the SEN voluntary sector. In addition, Ministers announced the decision to establish an independent advice service for parents of children with special educational needs; since then Children in Scotland have tendered successfully to provide this service. Full details of the announcement are shown at Annex E.
3 The Committee welcomes the consultation which has taken place on special educational needs provision in Scotland. At the same time it notes that the discussion paper did not aim to address the full spectrum of special educational needs issues. The Committee considers that issues raised in the consultation on the discussion paper, together with further issues raised in this report, warrant continued discussion at a national level. Such discussions should lead towards greater consistency in approach and understanding.
4 The Scottish Executive has an important responsibility in leading and responding to the discussion and developing a national strategic framework which will ensure continued high quality provision throughout Scotland. The Scottish Parliament can also be expected to take an interest in this area and raise the level of national debate. It will be important that Scottish Ministers and the Parliament have access to the widest possible range of views to assist them to develop clear and practical policies in special educational needs. A National Advisory Forum, where special educational needs issues could be discussed at a strategic level between all those in the education, health, social work and voluntary sectors with a relevant interest in this area, would ensure that Scottish Ministers and the Parliament have direct access to such views on a regular basis.
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The Scottish Executive should establish a National Special Educational Needs Advisory Forum. |
Rights and Responsibilities
5 The rights of children and the responsibilities of adults and public organisations to care for and protect them are now central concerns in the formulation of social policy at national and international level. Despite the undoubted barriers faced by children with severe low incidence disabilities and their families, there is growing recognition of such children's rights and their capacity for growth and development given appropriate education and support. For example, Article 23 of the UN Convention on the Rights of the Child (1989) states that disabled children have the right to special care, education and training designed to help them achieve the greatest possible self reliance to lead a full and active adult life.
6 The Education (Scotland) Act 1980, as amended, provides the statutory framework relating to special educational needs provision in Scotland. The Act places key duties and responsibilities on education authorities and parents, as well as providing rights for parents and young persons in certain areas.
7 Under the Act education authorities have a duty to secure adequate and efficient provision of school education for their area, including adequate and efficient provision for special educational needs. They must establish which children belonging to their area, who are 2 years of age or over but under school leaving age (basically age 16), have pronounced, specific or complex educational needs which require continuing review. They must open and keep a Record of Needs for any such child who, following assessment, is found to have such needs. Education authorities are also able, but are not obliged, to open a Record of Needs for children under the age of 2.
8 Parents have a duty to ensure that their children of school age (basically between the ages of 5 and 16), receive efficient education suitable for their age, abilities and aptitude, either by sending them to a school under the management of an education authority or by other means.
9 Parents have certain statutory rights in relation to special educational needs under the Act. Sections 61 (Assessment), 62 (Recording) and 63 (Appeals) lay down procedures under which parents may make representations and submit evidence to the education authority during the process of assessing their child's special educational needs. Parents also have a right of appeal to the Scottish Ministers over certain matters, such as refusal of an education authority to open a Record of Needs,
10 In addition, Section 28 of the Act gives parents certain rights to request a school for their child. In general terms, education authorities must, subject to certain limitations, comply with such a placing request. Parents of children with a Record of Needs have some additional options in relation to placing requests to independent special schools. Refusal of such requests can only take place under defined circumstances (see Annex F).
11 The choice of an appropriate school is an issue which causes great concern to many parents of children with special educational needs; refusal of a placing request can be a source of great friction between parents and authorities. The Committee noted that parents have a right of appeal to an education authority appeals committee and, subsequently, to the Sheriff. The Committee considers that recourse to statutory procedures can be lengthy and costly and is of the view that it is preferable that such disagreements are resolved directly between parents and authorities. Since mediation might have an important role to play in this area, it welcomes the setting up by the Government of a new National Independent Advice and Information Service which includes, as part of its remit, piloting of local mediation services.
Children and Young Person's Rights
12 Young persons are defined in the Act as persons who are over school age (16 years) but who are not yet 18 years of age. They have rights to request assessments on their own behalf similar to those that parents have for their children and also similar rights of appeal on appropriate matters.
13 The Committee noted that existing education legislation does not give children a specific right to education. It noted the different approach taken in more recent legislation focussing on the rights of children, in particular the Children (Scotland) Act) 1995. The Committee considered three of that Act's overarching principles as of particular relevance to its work:
14 Guidance in A Manual of Good Practice, (The Scottish Office, 1998), issued to local authorities working with children with special educational needs, states that the Children (Scotland) Act 1995 is seen by the Government as fulfilling its obligations to implement the UN Convention on the Rights of the Child and its obligations under the European Convention on Human Rights. While the present education framework has been generally effective in promoting universal educational provision, the Committee considers that the absence of a specific right for children to education may be of particular importance, for example, in the case of children with significant health needs who are unable to attend school. (see page 18 below).
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The Scottish Executive should review the legislative framework for special educational needs provision to ensure that it does not disadvantage particular children or groups of children and that the principles above are fully respected in practice. |
Mainstream Provision
15 International organisations such as the United Nations see education in mainstream schools as desirable for most pupils. The Salamanca Statement and Framework for Action on Special Needs Education (Paris: UNESCO, 1994), considers that inclusion and participation are essential to human dignity and the enjoyment and exercise of human rights. Government and local authority policies generally support the principle of inclusion of children with special educational needs in mainstream schooling. For example, a high proportion (55%) of pupils with Records of Needs are educated in mainstream schools.
16 The growing emphasis on educating children, wherever possible, in mainstream schools within their community is also in line with Government policy on community care and "normal" life principles for disabled people. Furthermore, the inclusive approach echoes other features of education policy such as the goal of radically reducing the number of children excluded from school. In order for inclusive education to become more than a pious hope, the Government and local authorities need to pay attention to the changes which are required in mainstream schools to ensure that children's special needs are identified and met with appropriate services.
17 The historical legacy of school provision in Scotland is not always consistent with the desire to educate children with special educational needs with their mainstream peers in neighbourhood schools or as close to their communities as possible. In particular, there was a trend in the 1950's and 1960's to build special schools in urban centres where children with special educational needs would be educated separately. In rural areas, however, disabled children were generally educated alongside their peers because of the expense of building special schools for small numbers of children.
18 The Committee welcomes Government and local authority commitments to overcome barriers which prevent successful placement in mainstream school. It recognises that authorities are more likely to place some groups of pupils with special educational needs in mainstream schools than others. For instance, those with physical or sensory impairments are more likely to be educated in mainstream than those with severe learning difficulties, multiple difficulties or social, emotional and behavioural difficulties.
19 There are still many barriers to successful inclusion, some of which may be directly linked to impairment. Children who have little or no speech, or severe communication difficulties associated with autism, are likely to need considerable support in order to be included in the school and wider society. Such children _ and their families - not only have to deal with impairment, but may also face public prejudice and financial hardship. Children with special needs from ethnic minorities require to have their ethnic, linguistic and cultural backgrounds taken into account when planning and delivering appropriate services. Policy makers, practitioners and peer groups can also reveal differing attitudes towards these groups of children and have diverse views on issues such as curricular resources and transport.
20 The Committee wishes to see more schools becoming accessible to children with severe low incidence disabilities, especially by improving physical access, the quality of accommodation and the appropriateness and balance of the curriculum.
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The Scottish Executive should examine what further support could be made available to assist local authorities to include children with severe low incidence disabilities in mainstream schools. |
21 Although the Committee endorses the principle of education in mainstream schools close to home for most children, it recognises that for some children with severe low incidence disabilities specialist provision or a residential placement may represent the best option. Some have needs which require a level of expertise which mainstream school staff may not have. Others have a high level of need for health care or therapy which authorities and health boards find it difficult to provide for within a mainstream setting.
22 Some families may also find it very difficult to look after their children at home for a range of reasons. In such circumstances, the priority should be to investigate whether additional support, such as respite care, would enable the child to remain at home; a residential placement should only be considered if it is evident that other forms of provision are unlikely to meet the child's needs.
23 Recent changes in legislation and patterns of working are leading authorities to develop local specialist provision. For example, closer working relationships between education and social work departments within authorities are expected to result in fewer residential placements being made. This development helps meet parents' preferences for provision closer to home. Even where there is a need for residential care, there is a trend towards more localised provision of services, so that, for example, social workers will place children in local foster care in preference to a residential placement outwith the authority. Where a child's needs are such that they can best be met in a specialist setting, a major challenge arises in avoiding the negative impact of isolation from peers in segregated facilities. Authorities also face greater difficulties in monitoring the needs of children placed in schools outwith their own area. It is important for local authorities to ensure that local provision is of high quality and meets the requirement of children with severe low incidence disabilities and that placements take full account of all the needs of a child, especially where a child has significant health needs.
24 The formal process and procedures involved in identifying and assessing the needs of children who have special educational needs are well covered in a range of guidance issued by The Scottish Office to authorities and schools. It includes Circular No 4/96, Children and Young Persons with Special Educational Needs: Assessment and Recording, and Effective Provision for Special Educational Needs, (EPSEN) (1994) and A Manual of Good Practice (1998). Local authorities are expected to use this guidance to draw up procedures which allow for the full involvement of parents from the outset of the assessment process. Where necessary, they are expected to offer assistance to parents to ensure that they can participate fully in decisions which affect their children's education. The Committee believes that full involvement and participation of parents in this process gives all concerned the best chance of reaching full agreement on appropriate provision.
25 Parents generally wish to see their children educated as close to home as possible. They are reluctant to see their children removed from their family and community for the school week or school term, or faced with lengthy daily journeys to and from school. At the same time, parents of children with severe low incidence disabilities are unlikely to choose local authority provision if they doubt that the full range of their children's needs will be met. For this reason, parents need to have access to full and clear information about available provision. The Committee heard evidence that parents did not always find it easy to secure such information from authorities.
26 The Committee feels strongly that it is in the interests of all concerned that authorities should at the earliest stage provide full information in an accessible form about the range of all provision that is available to meet the needs of children with severe low incidence disabilities. This information should include provision within and outwith their area and needs to be seen in a context where early identification and assessment of the needs of children precede decisions about placement. The Committee welcomes the establishment of the National Information and Advice Service which should greatly assist this objective.
27 The Children's (Scotland) Act 1995 requires local authorities to give due regard to children's views and wishes, taking into account the child's age and maturity, when making decisions and providing services.
28 At present, the voices of disabled children are rarely heard. On the other hand, the views of parents, local authorities, educationalists and health professionals are heavily represented, especially with regard to the type of education (special or mainstream) that the child receives. Disabled children may be prevented from developing social skills and confidence because their lives are unduly controlled by other people. The Committee is aware of recent research at the University of Edinburgh which has documented the views of many disabled children, including those with severe and multiple impairments. This work clearly shows that where children are given the opportunity, whatever the level of their impairment, they are capable of expressing their views.
29 The Committee considers that all children and young people should have opportunities for their views to be heard and taken into account in decisions affecting them. Where required, support should be offered to assist them to express these views. It is important that children and young people's views on wider issues are also heard. The Committee recognises, however, that eliciting the views of children with particular communication difficulties presents a significant challenge.
30 In terms of its own deliberations, the Committee felt that a formal committee setting was not an appropriate forum in which to gather views from children with severe low incidence disabilities. It was able to talk with children in the course of members' visits to schools. It also received a presentation from parents from the Edinburgh-based South-East Paediatric Mobility Trust which included a video featuring children with cerebral palsy in which the children discussed their own and other peoples' attitudes to disability. The children were actively involved in the making of the video, which enabled them to express their views not just passively, but in an openly challenging way, for instance over the lack of appropriate wheelchair provision.
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The Scottish Executive should examine and disseminate good practice which enables views of children and young people with severe low incidence disabilities to be taken into account by schools, local authorities and health boards in all decisions which affect them.
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Children with Significant Health Needs
31 The Committee considered whether the support needs of children with significant health needs met its working definition of severe low incidence disabilities. Depending on the nature and extent of their condition, children with significant health needs might have support needs in one, several or all of the four specified areas of the definition. (Ref Annex D, Case Study 3.7). The Committee concluded that some children within this broad grouping should be regarded as having severe low incidence disabilities.
32 The Committee was particularly concerned about children with health needs who were unable to attend school but were nonetheless able to benefit from education. Three sub groups of children were identified as being most likely to be affected by not being able to attend school, either on a long-term basis or for recurrent periods of time which add up to very significant absence:
33 Most of the children in these three groups are absent because they are not well enough to attend school, or because the treatment they are undergoing precludes school attendance. They may be resident in hospital or other medical/caring provision or increasingly, with trends towards day treatment and reduction of hospitalisation, at home. Their parents/carers, however, generally wish their children's education to continue, wherever they are located.
34 In addition to an education authority's general duty to ensure adequate and efficient education for its area, Section 14 of the Education (Scotland) Act 1980 gives it a power to make special arrangements for children to receive education other than at school, for example in hospital. This power contrasts with the position in England and Wales, where Section 19 of the Education Act 1996 imposes a duty on local education authorities to provide suitable full-time or part-time education at school, or otherwise, in certain circumstances, such as illness or other extraordinary circumstances, including cases of chronic and/or deteriorating conditions.
35 The Committee is concerned that, although education authorities in Scotland may make educational provision for children out of school, for example in hospital or at home, research suggests that such provision is extremely variable in its availability and its quality. It welcomes the fact that the Scottish Executive will be preparing guidance on the educational provision for children with significant health needs.
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The Scottish Executive should examine and clarify the statutory framework for educational provision for children with significant health needs who are not attending school, to ensure that they receive adequate and efficient educational provision. |
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