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CHILDREN AND YOUNG PERSONS WITH SPECIAL EDUCATIONAL NEEDS

LEGISLATIVE BACKGROUND

The 1980 Act

8. The main body of legislation governing provision for special educational needs and the arrangements for recording in Scotland are contained in the 1980 Act, as amended, and in Regulations made under that Act. The parts of this Act which provide the main legislative framework for the national policy for the education of children and young persons with special educational needs have been amended a number of times: first, by the 1981 Act and subsequently by the Disabled Persons (Services, Consultation and Representation) Act 1986 and the Self-Governing Schools etc. (Scotland) Act 1989 (referred to in the rest of this Circular respectively as the 1986 Act and the 1989 Act). The principal Regulations of relevance are the Education (Record of Needs) (Scotland) Regulations and the Education (Modification of Enactments) (Scotland) Regulations, both 1982.

Definitions

9. In interpreting the provisions of the 1980 Act:

9.1 Children and young -persons have special educational needs if they have a learning difficulty which calls for provision for special educational needs to be made for them (section 1(5)(d)).

9.2 Learning difficulty is said to be present if children or young persons:
(a) have significantly greater difficulty in learning than the majority of those of their age; or
(b) suffer from a disability which either prevents or hinders them from making use of educational facilities of a kind generally provided for those of their age in schools managed by their education authority; or
(c) who are under the age of 5 years and, if provision for special educational needs were not made for them, are or would be likely, when over that age, to have a learning difficulty as defined above.

The 1980 Act does not give any further clarification of the test to be applied in paragraph 9.2.b above. In the Department's view, as a rule of thumb, it should be assumed that children or young persons have a "'learning difficulty"' if additional arrangements need to be made to enable them properly to access the curriculum.

9.3 For the purposes of the 1980 Act, children and young persons are not regarded as having a learning difficulty solely because the language in which they are taught is different from that which has, at any time, been spoken in their home.

9.4 In relation to children of school age or young persons receiving school education, provision for special educational needs means educational provision which is additional to or otherwise different from that generally made for those of the same age in schools managed by the education authority for the area concerned. It should be noted that provision for special educational needs may be made in either mainstream or special schools. In relation to children who have not yet attained school age (and so who are not yet entitled to start school), it means educational provision appropriate to their needs (section 1(5)(c)).

10. The needs of very able children and young persons are not specifically referred to in the legislation. Giftedness is not, therefore, of itself, regarded as giving rise to special educational needs as defined in the 1980 Act. However, the more able may nevertheless experience learning difficulties of a temporary or continuing nature which give rise to special educational needs. In such cases, the duties of education authorities in relation to them, and the rights of these children and young persons will, so far as provision for special educational needs is concerned, be as described in this Circular and may include the possibility of recording.

The Children (Scotland) Act 1995

11. Currently, a local authority, as a social work authority, has functions in connection with the promotion of social welfare under the Social Work (Scotland) Act 1968. When the Children (Scotland) Act 1995 comes into force, local authorities will have functions to promote the welfare of children "in need" for the purposes of that Act. There will be particular functions in respect of children affected by disability. It is expected that the relevant provisions of Part 11 of that Act will be brought into force in April 1997. When these provisions come into force, references in this Circular should be amended as follows:

• references to children "in care" of a local authority should be read as if they were instead references to "looked after" by a local authority (see paragraphs 150-152 of this Circular); and

• references to "compulsory measures of care" should be read instead as if they were references to "compulsory measures of supervision" (see paragraph 197).

The Children (Scotland) Act 1995 will also change the definition of "parent" in the 1980 Act as is explained in the glossary to this Circular.

DUTIES OF EDUCATION AUTHORITIES

To Provide for Special Educational Needs

12. Education authorities have a duty under section 1 of the 1980 Act to secure the adequate and efficient provision of school education for their area. This must include adequate and efficient provision for special educational needs

13. Some special educational needs can be overcome in the short term. This is not the case with others. The 1980 -Act contains special provision, supplementary to section 1, aimed at ensuring those children and young persons who have more significant and enduring special educational needs, and so who need continuing special arrangements, receive appropriate long term assistance. For them, authorities may need to open a Record of Needs. (The criteria and process for opening a Record of Needs are discussed at paragraphs 105 and 106).

14. Education authorities have a duty under section 62(3) of the 1980 Act to ensure that school education which they provide for a child or young person with a Record of Needs includes provision for his special educational needs. They must also make provision for any special educational needs recorded for a child of their area who is at least 2 years of age, but who is not entitled yet to start school, and which are not being met by other suitable arrangements (section 62(3) of the 1980 Act as amended by section 72(3) of the 1989 Act).

To Assess Children and to Open Records

15. So that they are in a position to fulfil their duties in respect of special educational needs, education authorities must establish which children belonging to their area, who are 2 years of age or over but under school leaving age, have pronounced, specific or complex special educational needs which require continuing review (section 60(2) of the 1980Act). They must open and keep a Record of Needs for any such child who, following assessment, is found to have such needs.

16. Education authorities are also able, but are not obliged, to open a Record of Needs for those belonging to their area (section 23(3) of the 1980 Act) in 2 other sets of circumstances:

(a) for children under the age of 2: and
(b) for young persons - if requested to do so by the young person in attendance at school or by a parent on his or her behalf.

They will do so, however, only where such a child or young person has special educational needs which are pronounced, specific or complex and which require continuing review (section 60(2) and (5) of the 1980 Act).

17. The concept of belonging to an area for the purposes of the 1980 Act is explained in section 23(3) of that Act and in regulations made under that section. A pupil receiving school education is deemed generally to belong to the area in which his or her parents are ordinarily resident: exceptions to this rule relate to those in care and are set out in the Contributions for Educational Services (Prescription of Areas) (Scotland) Regulations 1951. This means that an authority may have a duty to assess, record and maintain a Record for a child who is attending an independent, grant-aided or self-governing school, within the authority's area or elsewhere, or a school under the management of another authority.

18. For a Record of Needs to be opened, the child or young person concerned must be formally assessed (section 61 of the 1980 Act). Identification of those thought to have special educational needs which require a Record of Needs, and assessment enabling the education authority to establish whether they do have such special educational needs, are dealt with at paragraphs 36-55 of this Circular.

To Publicise Opportunities for Assessment

19. All education authorities have a duty to publicise within their area the importance of early discovery of special educational needs and to disseminate information about the arrangements they make for the assessment of children and young persons with special educational needs (section 60(l) of the 1980 Act see paragraph 39). Authorities need therefore to adopt ways to discover where such children may be, and ensure they are properly identified as possibly having special educational needs.

Rights and Responsibilities of Parents

20. Parents have a duty under section 30 of the 1980 Act to ensure their children of school age receive efficient education suitable for their age, ability and aptitude, either by sending their child to a school under the management of an education authority or by other means. That applies just as much to parents of children with special educational needs as to parents generally. For children with a Record of Needs, this will usually be achieved by parents ensuring that their child attends the school named in Part VI of the Record. The education authority may make the arrangements and provide or pay for transport. The broad responsibilities of parents to provide guidance and direction in a child's best interests are set out in Part I of the Children (Scotland) Act 1995, which it is expected will be brought into force in November 1996.

21. Parents should always take as active an interest as possible in their child's education. For children with special educational needs, it is particularly important that their parents should be actively encouraged to become involved. Frequently this may involve an officer of the authority visiting the family home to discuss the child's future education. Parents should be given full information about the range of schools etc., which provide for learning difficulties of the type experienced by their child. They should also be given opportunities, and be encouraged, to visit schools which appear suitable for the child so they may discuss the educational programme which would be proposed for their child, the resources likely to be required to provide that programme and how he or she may be expected to progress if that school is selected.

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