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Assessing our children's educational needs: The Way Forward?

Part I: Legislative Background

The 1980 Act

1. The main legislation governing the education of children with special educational needs in Scotland is the Education (Scotland) Act 1980 (as amended). It covers the rights and duties of parents and education authorities, and its general provisions apply to the education of all children.

2. The Act defines special educational needs in a general sense as "needs caused by a learning difficulty" and then identifies for the purposes of opening a Record of Needs "pronounced, specific or complex special educational needs which are such as require continuing review" (see Annex A and Annex B for definitions and rights in the 1980 Act). In other words, the general concept of special educational needs can be thought of as referring to the 20% of pupils defined by the 1978 Warnock Report and within that there is a smaller group of pupils, perhaps 2%, who require Records of Needs.

3. The Record of Needs arrangements introduced by the Act were seen as major steps forward in moving from a model previously focused on a child's disability to one which looked at the needs of the child and how these should be met. These arrangements took forward the main recommendations of the Warnock report.

Recent legislation

4. Since 1980, there have been further significant changes in policy and legislation affecting children. There have been measures that strengthen the rights of children and parents, and the development of inclusive policies within education. For example:

• In 1991, the UK government adopted the UN Convention on the Rights of the Child, undertaking to bring UK law, policy and practice into line with the Convention's articles. This undertaking includes giving children the right to participate in any decisions which affect them.
• Some of the provisions in children's law in Scotland give children a right to participate to an extent in decisions affecting them. Local authorities have a duty to safeguard and promote the welfare of "children in need" by providing appropriate services. In addition, they must provide services for children with or effected by a disability which give them the opportunity to lead lives which are as normal as possible.
• The Standards in Scotland's Schools Etc (Scotland) Act 2000 requires education authorities (s.15) to provide education for all children in mainstream schools, except under certain circumstances. It also places a new duty (s.2(1)) on education authorities "to secure that the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential." This duty includes a requirement to have regard to the views of the children or young persons in decisions that affect them significantly.

5. In addition, the SEN and Disability Bill, which is currently progressing through the Westminster parliament, contains provisions which will extend the Disability Discrimination Act 1995 to education services, including those in Scotland. It includes duties on education providers not to discriminate unfairly against children and students with disabilities, to make reasonable adjustments to policies and practice, and to provide appropriate alternatives where adjustments are not possible.

Is change needed?

6. There is pressure for changing the current statutory provision for children with special educational needs. There is the view that, as a result of the changes in policy and legislation outlined above, the existing assessment and recording provisions in the 1980 Act are now out-of-date and ought to be revised substantially or replaced with a new framework. On the other hand, some suggest that there is nothing wrong with the principles underlying the current legislation, but that it should be strengthened and that practice in implementing it should be improved.

Difficulties with the current system

7. Criticisms of the current system for assessing and recording special educational needs include the following:

• the Record is viewed as being non-inclusive because it focuses on a small group of children while there are many others who require support but who do not meet the criteria for a Record;
• some parents and teachers view the Record as a means of obtaining resources and this can lead to conflict with local authorities, especially where inappropriate claims are made for recording;
• some local authorities consider the process of opening and reviewing Records as time-consuming and unnecessarily bureaucratic. Some educational psychologists argue that the process of opening and reviewing Records of Needs diverts them from other important work;
• it is suggested that multi-disciplinary assessment arrangements need to be streamlined to avoid unnecessary duplication and delay;
• there is a wide variation in recording rates across authorities.
• even when a Record has been opened, parents and teachers complain that the statements within it can be too general to be useful.

8. In addition, some local authorities argue that the assessment and recording process has a distorting effect on their ability to plan the use of resources effectively for all children. They argue that the focus on decisions made for individual children undermines a whole-school/whole-authority approach to meeting children's needs. The additional placing request rights which a Record of Needs conveys is seen to conflict with the new duties on authorities to consider a mainstream placement as the first choice for all children.

9. The existing assessment and recording process gives rights to young persons (those who are over school-leaving age but under the age of 18) to contribute their views and have them recorded. They can also appeal against some decisions. However there is no provision to include the views of younger children. This is seen to conflict with more recent legislation requiring authorities to take account of children's views in decisions that significantly affect them.

What degree of change is needed?

10. There are those who point to the above difficulties with the current assessment and recording system and argue that these flaws are so serious that the system ought to be replaced completely with a new one which focuses on entitlement for all rather than on an individual needs-based approach for some. The concept of entitlement would, it is argued, encompass all children, and advantage all those with special educational needs, not just the 1-2% for whom records are presently considered appropriate.

11. However, others argue for a less radical approach to change. They point to the benefits of the current legislation and argue that it has served many parents and children well over the last 20 years and should be strengthened. Among its key benefits are:

• the rights it gives to parents to request that their children be assessed, recorded and reviewed, to be present at medical examinations, to have their views heard and to appeal against some decisions made
  (see Annex C);
• the additional statutory rights provided by the Record to enable parents to make a placing request to pre-school nurseries and nursery classes, to independent special schools in Scotland and special schools elsewhere;
• the framework provided for multi-agency working, particularly between education and health services; and
• the identification of the future needs of pupils with Records and the support for the transition into adult services.

12. Parents and others argue that, without legislation which focuses directly on children with special educational needs, the rights of parents and children will not be protected.

13. In order to help focus views on whether the legislative framework should be replaced or amended, it will be helpful to consider key questions about the effective identification, assessment and provision for children with "special educational needs". The following section looks at some key questions.

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