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Education (Additional Support for Learning) (Scotland) Act 2004

2004 asp 4

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 1st April 2004 and received Royal Assent on 7th May 2004

An Act of the Scottish Parliament to make provision for additional support in connection with the school education of children and young persons having additional support needs; and for connected purposes.

Main definitionsS

1Additional support needsS

(1)A child or young person has additional support needs for the purposes of this Act where, for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.

[F1(1A)Without prejudice to the generality of subsection (1), a child or young person has additional support needs if the child or young person is looked after by a local authority (within the meaning of section 17(6) of the Children (Scotland) Act 1995 (c. 36)).

(1B)But where, in the course of identifying (in accordance with the arrangements made by them under section 6(1)(b)) the particular additional support needs of a child or young person who is looked after by a local authority (within the meaning of section 17(6) of the Children (Scotland) Act 1995 (c. 36)), an education authority form the view that the child or young person is, or is likely to be, able without the provision of additional support to benefit from school education provided to or to be provided for the child or young person, subsection (1A) ceases to apply.]

(2)In subsection (1), the reference to school education includes, in particular, such education directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential.

(3)In this Act, “additional support” means—

(a)in relation to [F2an eligible] pre-school child, a child of school age or a young person receiving school education, provision [F3(whether or not educational 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 [F4responsible for the school education of the child or young person, or in the case where there is no such authority, the education authority ],

(b)in relation to a child under school age other than [F5an eligible] pre-school child, such [F6provision (whether or not educational provision) ] as is appropriate in the circumstances.

Textual Amendments

Commencement Information

I1S. 1 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

2Co-ordinated support plansS

(1)For the purposes of this Act, a child or young person requires a plan (referred to in this Act as a “co-ordinated support plan”) for the provision of additional support if—

(a)an education authority are responsible for the school education of the child or young person,

(b)the child or young person has additional support needs arising from—

(i)one or more complex factors, or

(ii)multiple factors,

(c)those needs are likely to continue for more than a year, and

(d)those needs require significant additional support to be provided—

(i)by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or

(ii)by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.

(2)For the purposes of subsection (1)—

(a)a factor is a complex factor if it has or is likely to have a significant adverse effect on the school education of the child or young person,

(b)multiple factors are factors which—

(i)are not by themselves complex factors, but

(ii)taken together, have or are likely to have a significant adverse effect on the school education of the child or young person.

Commencement Information

I2S. 2 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

[F73Children and young persons: capacityS

(1)For the purposes of this Act, a child has capacity—

(a)in relation to an act that may be carried out by the child under a provision of this Act, if the child has sufficient maturity and understanding to carry out the act,

(b)in relation to a decision of the child mentioned in a provision of this Act, if the child has sufficient maturity and understanding—

(i)to make the decision,

(ii)to communicate the decision,

(iii)to understand the decision and its implications for the child, and

(iv)to retain the memory of the decision,

(c)in relation to the provision, under a provision of this Act, of any information, advice or co-ordinated support plan by an education authority to the child, if the child has sufficient maturity and understanding to understand the information, advice or (as the case may be) plan,

(d)in relation to any view of the child mentioned in this Act, if the child has sufficient maturity and understanding to express the view;

and any references in this Act to a child who lacks capacity are to be read accordingly.

(2)For the purposes of this Act, a young person lacks capacity to do something if the young person does not have sufficient understanding to do it.

(3)But a child or young person is not to be treated as lacking capacity by reason only of a lack or deficiency in a faculty of communication if that lack or deficiency can be made good by human, electronic or mechanical aid (whether of an interpretive nature or otherwise).]

Textual Amendments

[F83AChildren: assessment of capacity, etc.S

(1)Subsection (3) applies where, under a provision of this Act—

(a)a child who has attained the age of 12 years may do something only if an education authority is satisfied that the child has capacity in relation to the thing,

(b)an education authority may or must do something in relation to such a child only if the authority is satisfied that the child has capacity for the thing to be done in relation to the child,

(c)a child may do something in relation to an education authority only if the authority is satisfied that the child does not lack capacity in relation to the thing, or

(d)an education authority may or must do something in relation to a child only if the authority is satisfied that the child does not lack capacity in relation to the thing.

(2)Before a child does a thing as mentioned in subsection (1)(a) or (c), the child must notify the education authority that he or she proposes to do the thing.

(3)Before the child or (as the case may be) education authority does the thing, the education authority must—

(a)carry out an assessment of the capacity of the child to do the thing, or have the thing done in relation to the child, and

(b)consider whether it would adversely affect the wellbeing of the child to do the thing or have the thing done in relation to the child.

(4)Subsection (5) applies where an education authority, having complied with its duties under subsection (3), is satisfied that—

(a)the child lacks capacity to do the thing or have the thing done in relation to the child, or

(b)it would adversely affect the wellbeing of the child to do the thing or have the thing done in relation to the child.

(5)The child or (as the case may be) education authority may not do the thing in question.

(6)Where an education authority is notified by a child under subsection (2) that the child proposes to do the thing mentioned in that subsection, the education authority must—

(a)notify the child's parents that the authority intends to—

(i)carry out an assessment of the child's capacity to do the thing, and

(ii)consider whether it would adversely affect the wellbeing of the child to do the thing, and

(b)notify the child and the child's parents of—

(i)the result of the assessment, and

(ii)the authority's determination as to whether it would adversely affect the wellbeing of the child to do the thing.

Textual Amendments

3BAssessment of wellbeingS

(1)Subsection (2) applies where, by virtue of this Act, an education authority or [F9the First-tier Tribunal] is required to consider whether the wellbeing of a child who has attained the age of 12 years would, or would not, be adversely affected.

(2)The authority or, as the case may be, [F10the First-tier Tribunal] is to consider the matter by reference to the extent to which the child is or would be—

(3)The Scottish Ministers may by regulations modify the list in subsection (2) so as to amend, remove or add to the matters for the time being mentioned in the list.

(4)Before making any regulations under subsection (3), the Scottish Ministers must consult such persons as they consider appropriate.

Textual Amendments

3CRights of parents of children aged 12 or overS

(1)Subsection (2) applies where—

(a)a right is conferred under this Act on a child who has attained the age of 12 years,

(b)the right is one that is also exercisable by the parents of the child,

(c)the child—

(i)does not wish to exercise the right, and

(ii)does not wish the child's parents to exercise it, and

(d)the parents of the child do wish to exercise the right.

(2)The parents of the child may exercise the right.]

Textual Amendments

General powers and dutiesS

4Duties of education authority in relation to children and young persons for whom they are responsibleS

(1)Every education authority must—

(a)in relation to each child and young person having additional support needs for whose school education the authority are responsible, make adequate and efficient provision for such additional support as is required by that child or young person, and

(b)make appropriate arrangements for keeping under consideration—

(i)the additional support needs of, and

(ii)the adequacy of the additional support provided for,

each such child and young person.

(2)Subsection (1)(a) does not require an education authority to do anything which—

(a)they do not otherwise have power to do, or

(b)would result in unreasonable public expenditure being incurred.

Modifications etc. (not altering text)

C1S. 4(1) restricted (temp.) (25.3.2020) by Coronavirus Act 2020 (c. 7), s. 87(1), Sch. 16 para. 9(2) (with ss. 89, 90)

Commencement Information

I3S. 4 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

5General functions of education authority in relation to additional support needsS

(1)Every education authority must in exercising any of their functions in connection with the provision of school education, take account of the additional support needs of children and young persons having such needs.

[F11(2)Where a child falling within subsection (3) has been brought to the education authority's attention as appearing to have needs of the type mentioned in subsection (3)(c), the authority must (unless the child's parent does not consent)—

(a)in accordance with the arrangements made by them under section 6(1), establish whether the child does have such needs, and

(b)provide such additional support as is appropriate for the child.]

[F11(3)A child falls within this subsection if the child—

(a)is under school age (unless the child is [F12an eligible] pre-school child),

(b)belongs to the authority's area, and

(c)appears to have additional support needs arising from a disability (within the meaning of the F13[Equality Act 2010]) which the child has.]

(4)An education authority may provide such additional support as is appropriate for children (other than children to whom the education authority have a duty under subsection (2)) and young persons belonging to the area of the authority—

(a)having additional support needs, but

(b)for whose school education the authority are not responsible.

Textual Amendments

Commencement Information

I4S. 5 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Establishment of additional support needs and need for co-ordinated support planS

6Children and young persons for whom education authority are responsibleS

(1)Every education authority must make such arrangements as they consider appropriate for identifying—

(a)from among the children and young persons for whose school education they are responsible—

(i)those who have additional support needs, and

(ii)those having additional support needs who require a co-ordinated support plan, and

(b)the particular additional support needs of the children and young persons so identified.

[F14(1A)Without prejudice to the generality of subsection (1), every education authority must in particular consider whether each child or young person falling within section 1(1A) for whose school education they are responsible requires a co-ordinated support plan.]

(2)Where an education authority receive from a person specified in subsection (3) a request to establish whether any child or young person for whose school education the authority are responsible—

(a)has additional support needs, or

(b)requires a co-ordinated support plan,

the authority must, in accordance with the arrangements made by them under subsection (1), comply with the request unless the request is unreasonable.

(3)The persons referred to in subsection (2) are—

(a)in the case of a child, the child’s parent,

[F15(aa)in the case of a child who has attained the age of 12 years and who the authority is satisfied has capacity to make the request, the child,]

(b)in the case of a young person—

(i)the young person, or

(ii)if the authority are satisfied that the young person lacks capacity to make the request, the young person’s parent.

(4)Where, in pursuance of a request referred to in subsection (2), an education authority establish that a child or young person has additional support needs, the authority must inform—

[F16(a)]the person who made the request of that fact[F17, and

(b)where that person is a child falling within subsection (3)(aa), the child's parent of that fact.]

(5)Subsection (6) applies where a child or young person for whose school education an education authority are responsible comes to the attention of the authority as—

(a)having, or appearing to have, additional support needs, or

(b)having such needs and requiring, or appearing to require, a co-ordinated support plan.

(6)Where this subsection applies, the education authority must, in accordance with the arrangements made by them under subsection (1), establish whether the child or young person does have additional support needs or, as the case may be, require a co-ordinated support plan, unless the authority consider it unreasonable to do so.

(7)Subsections (2) and (6) are without prejudice to subsection (1).

Textual Amendments

F16Words in s. 6(4) renumbered as s. 6(4)(a) (10.1.2018) by Education (Scotland) Act 2016 (asp 8), s. 33(2), sch. para. 4(b)(ii); S.S.I. 2017/354, reg. 2(a)

Commencement Information

I5S. 6 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

7Other children and young personsS

(1)Where an education authority receive a request of a type specified in subsection (2) relating to any child or young person—

(a)belonging to the area of the authority, but

(b)for whose school education [F18an] authority are not responsible,

[F18an] authority may, in accordance with the arrangements made by them under section 6(1), comply with the request.

(2)The types of request referred to in subsection (1) are—

(a)a request from a person specified in subsection (3) to establish whether the child or young person in relation to whom the request is made—

(i)has additional support needs, or

(ii)would, if the education authority were responsible for the school education of the child or young person, require a co-ordinated support plan,

(b)in the case of a child or young person being provided with school education at an independent school or a grant-aided school, a request from the managers of the school to establish whether the child or young person would, if the education authority were responsible for the school education of the child or young person, require such a plan.

(3)The persons referred to in subsection (2)(a) are—

(a)in the case of a child, the child’s parent,

[F19(aa)in the case of a child who has attained the age of 12 years and who the authority is satisfied has capacity to make the request, the child,]

(b)in the case of a young person—

(i)the young person, or

(ii)if the authority are satisfied that the young person lacks capacity to make the request, the young person’s parent.

(4)Subsection (5) applies where a child or young person—

(a)belonging to the area of an education authority, but

(b)for whose school education an education authority are not responsible,

comes to the attention of the authority (otherwise than as a result of a request referred to in subsection (1)) as having, or appearing to have, additional support needs.

(5)Where this subsection applies, the education authority may, in accordance with the arrangements made by them under section 6(1), establish whether the child or young person does have additional support needs.

(6)Subsection (7) applies where, in pursuance of this section, an education authority establish that a child or young person—

(a)has additional support needs, or

(b)would, if the education authority were responsible for the school education of the child or young person, require a co-ordinated support plan.

(7)Where this subsection applies, the education authority must provide the persons mentioned in subsection (8) with such information and advice as to the additional support required by the child or young person as they consider appropriate.

(8)The persons referred to in subsection (7) are—

(a)in the case of a child, the child’s parent,

[F20(aa)in the case of a child falling within subsection (3)(aa) who the authority is satisfied has capacity in relation to the information or advice, the child,]

(b)in the case of a young person—

(i)the young person, or

(ii)if the authority are satisfied that the young person lacks capacity to understand the information or advice, the young person’s parent,

(c)where the authority establish the matter referred to in subsection (6) pursuant to a request made by the managers of an independent school or a grant-aided school, those managers.

[F21(9)Subsection (10) applies where an education authority receives a request as mentioned in subsection (1) relating to a child attending an independent or grant-aided school.

(10)The authority may request the managers of the school to provide the authority with such information and advice as the authority thinks appropriate for the purpose of enabling the authority to assess the capacity of the child in relation to the request.]

Textual Amendments

Commencement Information

I6S. 7 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

8Assessments and examinationsS

(1)Where—

(a)an education authority propose—

(i)in pursuance of any provision of this Act, to establish whether a child or young person has additional support needs or requires, or would require, a co-ordinated support plan, or

(ii)to review under section 10 any such plan prepared for any child or young person, and

(b)the appropriate person makes a request that the education authority arrange for the child or young person to whom the proposal referred to in paragraph (a) relates to undergo, for the purposes of the proposal, a process of assessment or examination (such a request being referred to in this section as an “assessment request”),

the education authority must comply with the assessment request unless the request is unreasonable.

(2)In subsection (1)(b), “the appropriate person” means—

(a)where the proposal referred to in subsection (1)(a) arises from a request referred to in section 6(2), 7(1) or 10(4), the person making the request,

(b)in any other case—

(i)where the proposal relates to a child, the child’s parent,

[F22(ia)where the proposal relates to a child who has attained the age of 12 years, the child,]

(ii)where the proposal relates to a young person, the young person or, where the authority are satisfied that the young person lacks capacity to make the request, the young person’s parent.

[F23(2A)But a child who has attained the age of 12 years is an appropriate person for the purposes of subsection (2) only if—

(a)in a case where paragraph (a) of that subsection applies—

(i)the authority is satisfied that there has been no significant change in the circumstances of the child since the request mentioned in that paragraph was made, or

(ii)where the authority is not so satisfied, the authority is satisfied that the child has capacity to make the request referred to in subsection (1)(b) at the time that request is made,

(b)in any other case, the authority is satisfied that the child has capacity to make the request referred to in that subsection.]

(3)Where a child or young person is to undergo a process of assessment or examination in pursuance of an assessment request, the process is to be carried out by such person as the education authority consider appropriate.

(4)In subsection (1)(b), the reference to assessment or examination includes educational, psychological or medical assessment or examination.

Textual Amendments

Commencement Information

I7S. 8 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

[F248AAssessments and examinations: further provisionS

(1)A person specified in subsection (3) may request that the education authority arrange for a child or young person to whom section 4(1)(a) applies to undergo, for the purpose of considering the additional support needs of the child or young person, a process of assessment or examination.

(2)The education authority must comply with the request unless it is unreasonable.

(3)The persons referred to in subsection (1) are—

(a)where the request relates to a child, the child's parent,

[F25(aa)where the request relates to a child who has attained the age of 12 years and who the authority is satisfied has capacity to make the request, the child,]

(b)where the request relates to a young person, the young person or, where the authority are satisfied the young person lacks capacity to make the request, the young person's parent.

(4)The education authority must, in accordance with the arrangements made by them under section 4(1)(b), take into account the results of any assessment or examination undertaken by virtue of this section.

(5)A process of assessment or examination undertaken by virtue of this section is to be carried out by such person as the education authority consider appropriate.

(6)In this section the reference to assessment or examination includes educational, psychological or medical assessment or examination.]

Textual Amendments

Co-ordinated support plansS

9Duty to prepare co-ordinated support plansS

(1)Where an education authority establish in pursuance of any provision of this Act that a child or young person for whose school education they are responsible requires a co-ordinated support plan, they must prepare such a plan for the child or young person.

(2)A co-ordinated support plan prepared under subsection (1) must contain—

(a)a statement of the education authority’s conclusions as to—

(i)the factor or factors from which the additional support needs of the child or young person arise,

(ii)the educational objectives sought to be achieved taking account of that factor or those factors,

(iii)the additional support required by the child or young person to achieve those objectives, and

(iv)the persons by whom the support should be provided,

(b)a nomination of a school to be attended by the child or young person,

(c)the name and other appropriate contact details of—

(i)the officer of the authority responsible for the discharge of the authority’s duty under subsection (5)(d) of section 11, or

(ii)if the authority arrange under subsection (6) of that section for that duty to be discharged by another person, that other person, and

(d)the name and other appropriate contact details of an officer of the authority from whom—

(i)in the case of a plan prepared for a child, the child’s parent [F26can obtain advice and further information],

[F27(ia)in the case of a plan prepared following a request mentioned in section 6(2), 7(2)(a) or 10(4) for a child who has attained the age of 12 and who the authority is satisfied has capacity in relation to advice or further information from the officer, the child can obtain such advice and information,]

(ii)in the case of a plan prepared for a young person, the young person or, where the authority are satisfied that the young person lacks capacity to seek advice or information, the young person’s parent [F28can obtain such advice and information].

F29...

(3)The references in subsection (2)(a) to educational objectives are to objectives set to secure that the child or young person benefits from school education (within the meaning of section 1(1)) provided or to be provided for the child or young person.

Textual Amendments

Commencement Information

I8S. 9 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

10Reviews of co-ordinated support plansS

(1)Every education authority must keep under consideration the adequacy of any co-ordinated support plans prepared (and not discontinued) for any children or young persons [F30for whose school education they are responsible].

(2)The education authority must carry out a review of each such co-ordinated support plan—

(a)on the expiry of the period of 12 months beginning with the date on which the plan was prepared, and

(b)thereafter, on the expiry of each successive period of 12 months beginning with the date on which the previous review (whether carried out under this subsection or subsection (3) or (4)) of the plan was completed.

(3)An education authority may carry out a review of such a co-ordinated support plan before the expiry of a period referred to in subsection (2) only—

(a)pursuant to a request referred to in subsection (4), or

(b)if the authority consider it necessary or expedient to do so because of a significant change in the circumstances of the child or young person for whom the plan was prepared since the plan was prepared or, as the case may be, last reviewed.

(4)Where the education authority receive from a person specified in subsection (5) a request to carry out a review of any such co-ordinated support plan as is mentioned in subsection (1) before the expiry of a period referred to in subsection (2), the authority must carry out a review of the plan unless the request is unreasonable.

(5)The persons referred to in subsection (4) are—

(a)in the case of a co-ordinated support plan prepared for a child, the child’s parent,

[F31(aa)in the case of a co-ordinated support plan prepared for a child who has attained the age of 12 years and who the authority is satisfied has capacity to make the request, the child,]

(b)in the case of a co-ordinated support plan prepared for a young person—

(i)the young person, or

(ii)where the education authority are satisfied that the young person lacks capacity to make the request, the young person’s parent.

[F32(5A)Where any such co-ordinated support plan as is mentioned in subsection (1) is transferred to the education authority by virtue of regulations made in pursuance of section 11(8), the authority must carry out a review of the plan as soon as practicable after the date of transfer.]

(6)In reviewing any co-ordinated support plan under this section, the education authority must, in accordance with the arrangements made by them under section 6(1), establish whether the child or young person for whom the plan was prepared still requires such a plan and—

(a)if so, continue the plan for the child or young person and make such amendments of it as the authority consider necessary or appropriate, or

(b)if not, discontinue the plan.

Textual Amendments

Commencement Information

I9S. 10 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

11Co-ordinated support plans: further provisionS

(1)Subsection (2) applies where an education authority propose—

(a)in pursuance of any provision of this Act, to establish whether any child or young person requires, or would require, a co-ordinated support plan,

(b)to review under section 10 any such plan prepared for any child or young person.

(2)Where this subsection applies, the education authority must—

(a)before proceeding, inform the persons mentioned in subsection (3) of their proposal, and

(b)on establishing the matter referred to in subsection (1)(a) or, as the case may be, completing the review referred to in subsection (1)(b), inform those persons of—

(i)the outcome, and

(ii)the rights (if any) which they have under section 18(1) to make a reference to [F33the First-tier Tribunal] in connection with the outcome.

(3)The persons referred to in subsection (2)(a) are—

(a)in the case of a child, the child’s parent,

[F34(aa)where the proposal—

(i)arises as a result of a request mentioned in section 6(2), 7(2)(a) or 10(4), and

(ii)relates to a child who has attained the age of 12 years,

the child,]

(b)in the case of a young person—

(i)the young person, or

(ii)if the authority are satisfied that the young person lacks capacity to understand the information, the young person’s parent,

(c)where the proposal arises as a result of a request referred to in section 7(1) made by the managers of an independent school or a grant-aided school, those managers.

(4)Subsection (5) applies where an education authority—

(a)prepare a co-ordinated support plan for any child or young person under this Act, or

(b)amend any such plan—

(i)following a review carried out under section 10, or

(ii)pursuant to a requirement made by [F35the First-tier Tribunal] under subsection (4)(b) or (5)(b)(ii) of section 19.

(5)Where this subsection applies, the education authority must—

(a)give a copy of the plan or amended plan—

(i)in the case of a child, to the child’s parent,

[F36(ia)in the case of a child who has attained the age of 12 years, to the child (but only if the plan was prepared or amended following a request mentioned in section 6(2), 7(2)(a) or 10(4) made by the child),]

(ii)in the case of a young person, to that young person or, if the authority are satisfied that the young person lacks capacity to understand the plan, to the young person’s parent,

(b)ensure that additional support is provided by them for the child or young person in accordance with the plan or amended plan so far as they have power to do so,

(c)seek to ensure that additional support is provided for the child or young person in accordance with the plan or amended plan by any person (other than the education authority) identified in the plan as a person by whom such support should be provided,

(d)co-ordinate, so far as possible, the provision of additional support for the child or young person as mentioned in paragraphs (b) and (c) by the authority and any other persons by whom such support is to be provided, and

(e)inform such persons as they consider appropriate, being persons who will be involved in the provision of additional support for the child or young person, of such matters contained in the plan or amended plan as they consider appropriate.

(6)The education authority may arrange for the discharge of their duty under subsection (5)(d) by another person.

(7)Subsection (6)—

(a)does not affect the responsibility of the education authority for the discharge of their duty under subsection (5)(d), and

(b)is without prejudice to any other power of the education authority to arrange for the discharge of any of their functions under this Act by another person.

(8)The Scottish Ministers may by regulations make further provision as to co-ordinated support plans including, in particular, provision as to—

(a)the form of such plans,

(b)the information (in addition to that required by section 9(2)) to be contained in them,

(c)the preparation, keeping, disclosure, discontinuance and destruction of such plans,

(d)the procedures to be followed in carrying out reviews of such plans under section 10,

(e)the transfer of such plans F37...

(f)without prejudice to the generality of the other paragraphs in this subsection, the times by which—

(i)such plans are to be prepared, and

(ii)reviews of them under section 10 are to be completed, and

(g)such other matters in relation to co-ordinated support plans as the Scottish Ministers think necessary or expedient.

Textual Amendments

Commencement Information

I10S. 11(1)-(7) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

I11S. 11(8) in force at 18.5.2005 for specified purposes by S.S.I. 2005/263, art. 2, Sch.

I12S. 11(8) in force at 14.11.2005 in so far as not already in force by S.S.I. 2005/564, art. 2

Exchange of informationS

12Duties to seek and take account of views, advice and informationS

(1)In—

(a)establishing in pursuance of any provision of this Act whether any child or young person—

(i)has additional support needs, or

(ii)requires, or would require, a co-ordinated support plan,

(b)establishing in pursuance of a review carried out under section 10 whether any child or young person still requires a co-ordinated support plan,

(c)preparing such a plan for any child or young person, or

(d)determining in pursuance of section 4(1) what provision to make for such additional support as is required by any child or young person having additional support needs,

the education authority must comply with the duty described in subsection (2).

(2)That duty is a duty to—

(a)seek and take account of relevant advice and information from such appropriate agencies and other persons as the education authority think appropriate,

(b)subject to subsection (3), seek and take account of the views of—

(i)in the case of a child, the child (unless the authority are satisfied that the child lacks capacity [F38in relation to] a view) and the child’s parent, and

(ii)in the case of a young person, that young person or, if the authority are satisfied that the young person lacks capacity to express a view, the young person’s parent,

(c)take account of any relevant advice or information provided to the authority by or on behalf of the child or young person concerned, and

(d)take account of any relevant advice and information in the authority’s possession or control by virtue of any of their functions other than their functions relating to education.

(3)In the cases mentioned in subsection (1)(a)(i) and (d), the duty described in subsection (2)(b) applies only in relation to such children and young persons as the authority consider appropriate.

[F39(3A)Where any such co-ordinated support plan as is mentioned in section 10(1) is transferred to the education authority by virtue of regulations made in pursuance of section 11(8), the authority's duty under subsection (2)(a) includes a duty to seek and take account of information and advice (within such period as will enable the authority to comply with their duty under section 10(5A)) from the education authority from which the plan was transferred and any agencies or persons involved in providing support under the plan prior to its transfer.]

(4)Advice or information is relevant for the purposes of subsection (2)(a), (c) or (d) if it is likely to assist the education authority in doing any of the things referred to in paragraphs (a) to (d) of subsection (1).

(5)Every education authority must—

(a)no later than 12 months before the date on which any child or young person—

(i)having additional support needs, and

(ii)for whose school education the authority are responsible,

is expected to cease receiving school education, or

(b)where the education authority become aware that the child or young person is to cease receiving school education less than 12 months before that date, as soon as reasonably practicable after they become so aware,

comply with the duty in subsection (6).

(6)That duty is a duty to—

(a)request from such appropriate agency or agencies as the authority think fit (if any) such information as the authority consider appropriate concerning any provision which the agency is or, as the case may be, the agencies are likely to make for the child or young person on ceasing to receive school education,

(b)where the authority make a request under paragraph (a), seek the views of—

(i)in the case of a child, that child (unless the authority are satisfied that the child lacks capacity [F40in relation to] a view) and the child’s parent, or

(ii)in the case of a young person, that young person or, if the authority are satisfied that the young person lacks capacity to express a view, the young person’s parent, and

(c)take account of—

(i)any information provided by any appropriate agency or agencies pursuant to a request under paragraph (a),

(ii)any views expressed by the child or young person or the child’s or young person’s parent pursuant to paragraph (b), and

(iii)any provision which the education authority themselves are, in the exercise of any of their functions other than their functions relating to education, likely to make for the child or young person on ceasing to receive school education,

in considering the adequacy of the additional support to be provided for the child or young person during the period before the child or young person ceases to receive school education.

(7)Subsections (5) and (6) are without prejudice to section 4(1)(b).

Textual Amendments

F38Words in s. 12(2)(b)(i) substituted (10.1.2018) by Education (Scotland) Act 2016 (asp 8), s. 33(2), sch. para. 11(a); S.S.I. 2017/354, reg. 2(a)

F40Words in s. 12(6)(b)(i) substituted (10.1.2018) by Education (Scotland) Act 2016 (asp 8), s. 33(2), sch. para. 11(b); S.S.I. 2017/354, reg. 2(a)

Commencement Information

I13S. 12 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

13Provision of information etc. on occurrence of certain eventsS

(1)Every education authority must—

(a)no later than 6 months before the date on which any child or young person—

(i)having additional support needs, and

(ii)for whose school education the authority are responsible,

is expected to cease receiving school education, or

(b)where the education authority become aware that the child or young person is to cease receiving school education less than 6 months before that date, as soon as reasonably practicable after they become so aware,

comply with the duty in subsection (2).

(2)That duty is a duty—

(a)to provide such appropriate agency or agencies as the authority think fit (if any) with the information specified in subsection (3), and

(b)to—

(i)consider what (if any) provision the authority are, in the exercise of any of their functions other than their functions relating to education, likely to make for the child or young person on ceasing to receive school education, and

(ii)for that purpose, take into account any information specified in subsection (3).

(3)The information referred to in subsection (2) is—

(a)information as to the date on which the child or young person is expected to cease receiving school education, and

(b)such other information as the authority consider appropriate concerning the child or young person and the additional support needs of the child or young person.

(4)Every education authority must, when any such child or young person as is referred to in subsection (1) ceases to receive school education, inform such appropriate agency or agencies as the authority think fit of that fact as soon as reasonably practicable.

[F41(4A)In relation to the provision of any information under subsection (2)(a) or (4) in the case of a child, the education authority must seek and take account of the views of the child (unless the authority are satisfied that the child lacks capacity [F42in relation to such] a view).]

(5)Information is to be provided under subsection (2)(a) or (4) only with the consent of—

[F43(za)in the case of a child who has attained the age of 12 years and who the authority is satisfied has capacity to give consent, the child,]

(a)in the case of [F44any other] child, the child’s parent,

(b)in the case of a young person—

(i)the young person, or

(ii)where the education authority are satisfied that the young person lacks capacity to give consent, the young person’s parent.

(6)The Scottish Ministers may by regulations make provision for the taking by education authorities of specified action in connection with the occurrence or likely occurrence of specified changes in the school education of children and young persons—

(a)having additional support needs, and

(b)for whose school education the authorities are responsible.

(7)Regulations under subsection (6) may, in particular, make provision—

(a)for the disclosure by the authorities of specified information about such children or young persons—

(i)to specified persons or persons of specified descriptions,

(ii)subject to specified conditions,

(b)for such information to be disclosed, or any other action taken, by specified times.

(8)In subsections (6) and (7), “specified” means specified in regulations under subsection (6).

Textual Amendments

Commencement Information

I14S. 13(1)-(5) (8) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

I15S. 13(6)(7) in force at 18.5.2005 for specified purposes by S.S.I. 2005/263, art. 2, Sch.

I16S. 13(6)(7) in force at 14.11.2005 in so far as not already in force by S.S.I. 2005/564, art. 2

Supporters and advocacyS

14Supporters and advocacyS

(1)Where, in connection with the exercise of an education authority’s functions under this Act in relation to any child or young person, the relevant person wishes—

(a)to have another person (referred to as a “supporter”) present at any discussions with the authority for the purpose of supporting the relevant person in the course of those discussions, or

(b)another person (referred to as an “advocate”) to—

(i)conduct such discussions or any part of them, or

(ii)make representations to the authority,

on the relevant person’s behalf,

the education authority must comply with the relevant person’s wishes, unless the wishes are unreasonable.

(2)In subsection (1), “the relevant person” means—

(a)in the case of a child, the child’s parent,

[F45(aa)in the case of a child who has attained the age of 12 years and who the authority is satisfied has capacity in relation to discussions or representations as mentioned in subsection (1), the child,]

(b)in the case of a young person—

(i)the young person, or

(ii)if the authority are satisfied that the young person lacks capacity to participate in discussions or make representations as referred to in subsection (1), the young person’s parent.

(3)Nothing in subsection (1) is to be read as requiring an education authority to provide or pay for a supporter or advocate.

Textual Amendments

Commencement Information

I17S. 14 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

[F4614A[F47Provision of advocacy service: First-tier Tribunal]S

(1)The Scottish Ministers must, in respect of [F48proceedings before the First-tier Tribunal] , secure the provision of an advocacy service to be available on request and free of charge to the persons mentioned in subsection (2).

(2)The persons are—

(a)in the case of a child, the child's parent,

(b)in the case of a young person—

(i)the young person, or

(ii)where the young person lacks capacity to participate in discussions or make representations of the type referred to in subsection (3), the young person's parent.

(3) In subsection (1) “ advocacy service ” means a service whereby another person conducts discussions with or makes representations to the [F49First-tier Tribunal] or any other person involved in the proceedings on behalf of a person mentioned in subsection (2). ]

Textual Amendments

Mediation and dispute resolutionS

15Mediation servicesS

(1)Every education authority must make such arrangements as they consider appropriate for the provision of independent mediation services for the purposes of seeking to avoid or resolve disagreements between the authority and—

[F50(a)the parents of any children,]

[F51(b)any young persons,]

(c)in relation to any F52... young persons who lack capacity to express a view or make a decision for those purposes, their parents,

concerning the exercise by the authority of [F53any of ]their functions under this Act in relation to [F54the] children or young persons.

[F55(1A)In making arrangements under subsection (1) for the provision of mediation services in respect of a matter that is the subject of a disagreement (or potential disagreement) between an education authority and the parents of a child, the authority must seek and take account of the views of the child in respect of the matter.]

(2)Mediation services are independent for the purposes of subsection (1) if the person providing the services has no involvement in the exercise by or on behalf of the authority of their functions [F56 relating to education or any of their other functions](apart from this section).

(3)Arrangements made in pursuance of subsection (1)—

(a)must not require any parent or young person—

(i)to refer any disagreement with the authority to the mediation services provided in accordance with the arrangements, or

(ii)to pay any fee or charge for the provision of the mediation services, and

(b)do not affect the entitlement of any parent or young person to refer any matter to [F57the First-tier Tribunal] .

(4)In this section and section 16, references to the exercise by an education authority of any function include references to a failure to exercise the function.

Textual Amendments

Commencement Information

I18S. 15 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

16Dispute resolutionS

(1)The Scottish Ministers may by regulations make provision about the resolution of disputes between any education authority and—

(a)the parent of any child F58...,

[F59(aa)any child who has attained the age of 12 years and who the authority is satisfied has capacity as respects views or decisions relating to the purposes of resolving such disputes,]

(b)any young person F60..., or

(c)in relation to any F61...young person who lacks capacity to express a view or make a decision for the purposes of resolving such disputes, the young person’s parent,

concerning the exercise by the authority of any of their functions under this Act in relation to the child or young person.

(2)Regulations under subsection (1) may, in particular, make provision—

[F62(za)requiring any application by a person mentioned in subsection (1)(a) to (c) for referral to dispute resolution to be made to the Scottish Ministers,]

(a)requiring education authorities to establish a procedure in accordance with the regulations for the resolution of such disputes,

(b)applying to all such disputes or only to such descriptions of such disputes as may be specified in the regulations.

(3)However, such regulations, and any provision made in pursuance of such regulations—

(a)must not require any parent [F63, child] or young person—

(i)to use any procedure established in accordance with the regulations for the resolution of any dispute with an education authority, or

(ii)to pay any fee or charge for using any such procedure, and

(b)do not affect the entitlement of any parent [F64, child] or young person to refer any matter to [F65the First-tier Tribunal] .

Textual Amendments

Commencement Information

I19S. 16 in force at 18.5.2005 for specified purposes by S.S.I. 2005/263, art. 2, Sch.

I20S. 16 in force at 14.11.2005 in so far as not already in force by S.S.I. 2005/564, art. 2

AppealsS

F6617Additional Support Needs Tribunals for ScotlandS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

18[F67References to the First-tier Tribunal]S

(1)Any of the persons specified in subsection (2) may refer to [F68the First-tier Tribunal] any decision, failure or information specified in subsection (3) relating to any child or young person for whose school education an education authority are responsible.

(2)The persons referred to in subsection (1) are—

(a)where the decision, failure or information relates to a child, the parent of the child,

[F69(aa)where the decision, failure or information relates to a child mentioned in subsection (2A), the child,]

(b)where the decision, failure or information relates to a young person—

(i)the young person, or

(ii)where the young person lacks capacity to make the reference, the young person’s parent.

[F70(2A)The child is a child who has attained the age of 12 years and—

(a)who the [F71First-tier Tribunal] is satisfied has capacity to make the reference, and

(b)whose wellbeing would, in the opinion of the [F72First-tier Tribunal] , not be adversely affected were the child to make the reference.]

(3)The decisions, failures and information referred to in subsection (1) are—

(a)a decision of the education authority that the child or young person—

(i)requires a co-ordinated support plan, or

(ii)following a review carried out under section 10, still requires such a plan,

(b)a decision of the education authority that the child or young person—

(i)does not require such a plan, or

(ii)following a review carried out under section 10, no longer requires such a plan,

(c)where it has been established that the child or young person does require a co-ordinated support plan, failure by the education authority to prepare a plan by the time required by regulations made in pursuance of subsection (8)(f)(i) of section 11,

(d)where a co-ordinated support plan has been prepared (and not discontinued) for the child or young person—

(i)any of the information contained in the plan by virtue of subsection (2)(a) of section 9,

[F73(ia)failure by the education authority to provide, or make arrangements for the provision of, the additional support (whether relating to education or not) identified by virtue of section 9(2)(a)(iii),]

(ii)failure by the education authority to carry out a review of the plan as required by subsection (2) of section 10,

(iii)where such a review is carried out, failure by the education authority to complete the review by the time required by regulations made in pursuance of subsection (8)(f)(ii) of section 11, or

(iv)a decision of the education authority to refuse a request referred to in subsection (4) of section 10,

[F74(da)a decision of an education authority refusing a placing request made in respect of a child or young person (including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible)—

(i)made under sub-paragraph (1) of paragraph 2 of schedule 2 in relation to a special school, or

(ii)made under sub-paragraph (2) of paragraph 2 of schedule 2 in relation to a school mentioned in paragraph (a) or (b) of that sub-paragraph,]

(e)where subsection (4) applies, a decision of [F75an] education authority refusing a placing request [F76other than a placing request mentioned in paragraph (da)] made in respect of [F77a] child or young person [F78 (including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible)].

[F79(ea)a decision of an education authority in relation to the capacity of a child who has attained the age of 12 years to exercise a right under this Act,

(eb)a decision of an education authority that it is, or is not, satisfied as respects a matter relating to the wellbeing of such a child,]

[F80(f)a decision of an appeal committee on a reference made to them under paragraph 5 of schedule 2 but only where the things mentioned in any of paragraphs (a), (b), (ba) and (c) of subsection (4) occur—

(i)after the decision of the appeal committee, but

(ii)before the time by which any appeal must be lodged in accordance with paragraph 7(3) of schedule 2.]

[F81(g)failure by the education authority to comply with their duties under section 12(6) and 13 in respect of the child or young person (except where consent for information to be provided under section 13(2)(a) or (4) has not been given under section 13(5)) .]

(4)This subsection applies whereF82...—

(a)a co-ordinated support plan has been prepared (and not discontinued) for the child or young person,

(b)no such plan has been prepared, but it has been established by the education authority that the child or young person requires such a plan, or

[F83(ba)no such plan has been prepared, but under subsection (2)(a) of section 11 the education authority have informed the persons mentioned in subsection (3) of that section of their proposal to establish whether the child or young person requires, or would require, such a plan,]

(c)the education authority have decided that the child or young person does not require such a plan and that decision has been referred to [F84the First-tier Tribunal] under subsection (1).

(5)A decision of an education authority not to comply with a request referred to in section 6(2)(b) made in relation to any child or young person is to be treated for the purposes of this section as a decision of the authority that the child or young person does not require a co-ordinated support plan.

[F85(5A)Where an education authority fail, in response to a request referred to in section 6(2)(b)—

(a)to inform under subsection (2)(a) of section 11 the persons mentioned in subsection (3) of that section of their proposal to establish whether a child or young person requires, or would require, a co-ordinated support plan by the time required by regulations made in pursuance of subsection (8) of that section, or

(b)to inform those persons of any decision not to comply with the request by the time required by such regulations,

that failure is to be treated for the purposes of this section as a decision of the authority that the child or young person does not require a co-ordinated support plan.

(5B)Where under subsection (2)(a) of section 11 the education authority have informed the persons mentioned in subsection (3) of that section of their proposal to establish whether the child or young person requires, or would require, a co-ordinated support plan, failure by the authority so to establish by the time required by regulations made in pursuance of subsection (8) of that section is to be treated for the purposes of this section as a decision of the authority that the child or young person does not require a co-ordinated support plan.]

(6)Where, in respect of any child or young person for whom a co-ordinated support plan has been prepared (and not discontinued), any of the information referred to in subsection (3)(d)(i) has been referred under subsection (1) to [F86the First-tier Tribunal] , a further reference under that subsection in respect of the same information is not competent unless, since the last such reference was disposed of, a review of the plan has been carried out under section 10.

(7)Where a decision referred to in subsection [F87 (3)(da) or (e)] in respect of a child or young person has been referred under subsection (1) to [F88the First-tier Tribunal] , a further reference under that subsection of such a decision in respect of the child or young person is not competent during the period of 12 months beginning with the day on which the last such reference of such a decision was made, unless, during that period—

(a)a review of any co-ordinated support plan prepared for the child or young person has been carried out under section 10,

(b)any such plan prepared for the child or young person has been amended pursuant to a requirement made by [F88the First-tier Tribunal] under section 19(4)(b), or

(c)where the last such reference of such a decision was made by virtue of subsection (4)(c), a co-ordinated support plan has been prepared for the child or young person.

[F89(8)For the purposes of subsection (7), it is irrelevant whether the further reference, and the last reference, mentioned in that subsection relate to the same or to different specified schools (which expression is to be construed in accordance with paragraph 2(3) of schedule 2).

(9)Nothing in subsection (7) prevents a further reference being made during the period mentioned in that subsection if the last reference so mentioned is, by virtue of rules under paragraph 11 of schedule 1, withdrawn before any hearing by [F90the First-tier Tribunal] in relation to the last reference is held.

(10)But where a further reference is made in the circumstances mentioned in subsection (9), the [F91Chamber President] may, if satisfied that there is good reason to do so, decide that the reference is not to proceed to consideration by [F92the First-tier Tribunal] .

(11)Subsection (7) applies in relation to a decision referred to in subsection (3)(ea) or (eb) as it applies in relation to a decision referred to in subsection (3)(da) or (e); but only where any further reference would relate to—

(a)the same right as mentioned in subsection (3)(ea) as the last such reference relates to, or

(b)the same matter as mentioned in subsection (3)(eb) as the last such reference relates to.]

Textual Amendments

Commencement Information

I21S. 18 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

19[F93Powers of First-tier Tribunal in relation to reference]S

(1)This section specifies the powers of [F94the First-tier Tribunal] in relation to a reference made under section 18.

(2)Where the reference relates to a decision referred to in subsection (3)(a), (b) [F95, (d)(iv), (ea) or (eb)] of that section, the [F96First-tier Tribunal] may—

(a)confirm the decision, or

(b)overturn the decision and require the education authority to take such action as the [F96First-tier Tribunal] considers appropriate by such time as the [F96First-tier Tribunal] may require.

(3)Where the reference relates to a failure referred to in subsection (3)(c)[F97, [F98(d)(ia), (ii)] or (iii) or (g)] of that section, the [F99First-tier Tribunal] may require the education authority to take such action to rectify the failure as the [F99First-tier Tribunal] considers appropriate by such time as the [F99First-tier Tribunal] may require.

(4)Where the reference relates to information referred to in subsection (3)(d)(i) of that section, the [F100First-tier Tribunal] may—

(a)confirm the information, or

(b)require the education authority to make such amendment of the information as the [F100First-tier Tribunal] considers appropriate by such time as the [F100First-tier Tribunal] may require.

[F101(4A)Where the reference relates to a decision referred to in subsection (3)(da) of that section the [F102First-tier Tribunal] may—

(a)confirm the decision if satisfied that—

(i)one or more grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exists or exist, and

(ii)in all the circumstances it is appropriate to do so,

(b)overturn the decision and require the education authority to—

(i)place the child or young person in the school specified in the placing request to which the decision related by such time as the [F102First-tier Tribunal] may require, and

(ii)make such amendments to any co-ordinated support plan prepared for the child or young person as the [F102First-tier Tribunal] considers appropriate by such time as the [F102First-tier Tribunal] may require.]

(5)Where the reference relates to a decision referred to in subsection (3)(e) of that section, the [F103First-tier Tribunal] may—

(a)confirm the decision if satisfied that—

(i)one or more of the grounds of refusal specified in paragraph 3(1) or (3) of schedule 2 exists or exist, and

(ii)in all the circumstances it is appropriate to do so,

(b)overturn the decision and require the education authority to—

(i)place the child or young person in the school specified in the placing request to which the decision related, and[F104by such time as the [F103First-tier Tribunal] may require]

(ii)make such amendments to the co-ordinated support plan prepared for the child or young person as the [F103First-tier Tribunal] considers appropriate by such time as the [F103First-tier Tribunal] may require, or

[F105(ba)where—

(i)the decision was referred to the [F103First-tier Tribunal] by virtue of the application of subsection (4)(ba) of that section, and

(ii)the education authority have decided the child or young person does not require a co-ordinated support plan and that decision has not been referred to the [F103First-tier Tribunal] under subsection (1) of that section by the time within which such references are to be made,

refer the decision to an appeal committee set up under section 28D of the 1980 Act,]

(c)where—

(i)the decision was referred to the [F103First-tier Tribunal] by virtue of the application of subsection (4)(c) of that section, and

(ii)the [F103First-tier Tribunal] has confirmed the decision of the education authority that the child or young person does not require a co-ordinated support plan,

refer the decision to an appeal committee set up under section 28D of the 1980 Act.

[F106(d)where—

(i)the decision was transferred from an appeal committee to the [F103First-tier Tribunal] by virtue of paragraph 6(4) and (5) of schedule 2 because the thing described in subsection (4)(ba) of that section occurred, and

(ii)the education authority have decided the child or young person does not require a co-ordinated support plan and that decision has not been referred to the [F103First-tier Tribunal] under subsection (1) of that section by the time within which such references are to be made,

refer the decision back to the appeal committee,

(e)where—

(i)the decision was transferred from an appeal committee to the [F103First-tier Tribunal] by virtue of paragraph 6(4) and (5) of schedule 2 because the things described in subsection (4)(c) of that section occurred, and

(ii)the [F103First-tier Tribunal] has confirmed the decision of the education authority that the child or young person does not require a co-ordinated support plan,

refer the decision back to the appeal committee,

(f)where—

(i)the decision was transferred from the sheriff to the [F103First-tier Tribunal] by virtue of paragraph 7(8) and (9) of schedule 2 because the thing described in subsection (4)(ba) of that section occurred, and

(ii)the education authority have decided the child or young person does not require a co-ordinated support plan and that decision has not been referred to the [F103First-tier Tribunal] under subsection (1) of that section by the time within which such references are to be made,

refer the decision back to the sheriff,

(g)where—

(i)the decision was transferred from the sheriff to the [F103First-tier Tribunal] by virtue of paragraph 7(8) and (9) of schedule 2 because the things described in subsection (4)(c) of that section occurred, and

(ii)the [F103First-tier Tribunal] has confirmed the decision of the education authority that the child or young person does not require a co-ordinated support plan,

refer the decision back to the sheriff.]

[F106(5A)Where the reference relates to a decision referred to in subsection (3)(f) of that section the [F107First-tier Tribunal] has the powers as mentioned in paragraphs (a) and (b) of subsection (5) of this section.]

(6)Paragraphs 6 and 7 of schedule 2 apply to a reference made to an appeal committee under [F108paragraph (ba) or (c) of subsection (5)] as they apply to a reference made to an appeal committee under paragraph 5 of that schedule.

(7)In exercising its powers under this section, [F109the First-tier Tribunal] must take account, so far as relevant, of any code of practice published by the Scottish Ministers under section 27(1).

Textual Amendments

F98Words in s. 19(3) substituted (14.11.2010 immediately after 2009 asp 7, s. 19(2) comes into force) by Education (Additional Support for Learning) (Scotland) Act 2009 (asp 7), ss. 18(2), 26(3); S.S.I. 2010/277, art. 2

Commencement Information

I22 S. 19 in force at 14.11.2005 by S.S.I. 2005/564 , art. 2

Prospective

20[F110References to First-tier Tribunal and powers of First-tier Tribunal: further provision]S

(1)The Scottish Ministers may by order extend the categories of decision, failure or information in respect of which a reference to the [F111First-tier Tribunal] under section 18(1) may be made; and without prejudice to the generality such further categories of decision, failure or information may include—

(a)a decision of the education authority—

(i)that the child or young person has, or does not have, additional support needs,

(ii)that a child or young person has additional support needs of a type that the person making the referral considers are not an accurate reflection of the child or young person’s additional support needs,

(iii)to refuse an assessment request as referred to in section 8,

(iv)as to the person, or to the means used, or to be used, to carry out the process of assessment or examination referred to in section 8,

(b)failure by—

(i)the education authority,

(ii)any person identified in any co-ordinated support plan prepared for the child or young person as a person by whom additional support should be provided, or

(iii)a combination of these persons,

to provide the additional support required by the child or young person.

(2)Any order made under subsection (1) may also include provision to allow the [F112Chamber President] to reject references to the [F113First-tier Tribunal] arising from any further category of decision, failure or information referred to in the order without a hearing where the [F112Chamber President] is satisfied that the reference prima facie raises no substantial issue.

(3)Orders made under subsection (1) may also make such consequential provision as the Scottish Ministers consider necessary or expedient, including provision as to the [F114First-tier Tribunal’s] powers in relation to any new category of decision, failure or information that may be referred to it.

Textual Amendments

F11521Appeal to Court of Session against Tribunal decisionS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Placing requestsS

22Placing requestsS

Schedule 2 makes provision about placing requests in relation to children and young persons having additional support needs.

Commencement Information

I23S. 22 in force at 18.5.2005 for specified purposes by S.S.I. 2005/263, art. 2, Sch.

I24S. 22 in force at 14.11.2005 in so far as not already in force by S.S.I. 2005/564, art. 2

MiscellaneousS

23Other agencies etc. to help in exercise of functions under this ActS

(1)Where it appears to an education authority that an appropriate agency could, by doing certain things, help in the exercise of any of the education authority’s functions under this Act, the authority may, specifying what those things are, request the help of that agency.

(2)For the purposes of this Act, each of the following is, in relation to any education authority, an appropriate agency, namely—

(a)any other local authority,

(b)any Health Board, and

(c)any person, or a person of any description, specified for the purposes of this subsection in an order made by the Scottish Ministers.

(3)An appropriate agency must comply with a request made to it under subsection (1) unless it considers that the request—

(a)is incompatible with its own statutory or other duties, or

(b)unduly prejudices the discharge of any of its functions.

(4)The Scottish Ministers may by regulations provide that, where an appropriate agency is under a duty by virtue of subsection (3) to comply with a request made to it under subsection (1), the agency must, subject to such exceptions as may be provided in the regulations, comply with the request within such period as is specified in the regulations.

(5)Where it appears to an education authority that, by doing certain things in the exercise of any of their other functions (whether relating to education or not), they could help the exercise by them of their functions under this Act, the authority must do those things unless they consider that to do so would—

(a)be incompatible with any of their statutory or other duties, or

(b)unduly prejudice the discharge by them of any of their functions.

Commencement Information

I25S. 23(1)(2)(a)(2)(b)(3)(5) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

I26S. 23(2)(c)(4) in force at 18.5.2005 for specified purposes by S.S.I. 2005/263, art. 2, Sch.

I27S. 23(2)(c)(4) in force at 14.11.2005 in so far as not already in force by S.S.I. 2005/564, art. 2

Prospective

24Power to prescribe standards etc. for special schoolsS

(1)The Scottish Ministers may make regulations prescribing standards and requirements relating to the conduct of special schools.

(2)Subsection (1) is without prejudice to section 2 (power to prescribe standards etc. for education authorities) of the 1980 Act.

25Attendance at establishments outwith the United KingdomS

(1)An education authority may make such arrangements as they consider appropriate to enable a child or young person having additional support needs to attend an establishment (whether or not a school) outwith the United Kingdom if that establishment makes provision wholly or mainly for persons having such needs.

(2)Such arrangements may, in particular, include paying, whether wholly or partly—

(a)the fees payable, and any travelling, maintenance and other expenses, in respect of the child or young person’s attendance at the establishment,

(b)where in the opinion of the authority it would be to the advantage of the child or young person if—

(i)one or both of the parents of the child or young person, or

(ii)some other person,

were present with the child or young person at the establishment during the period of the child or young person’s attendance at the establishment, any travelling, maintenance or other expenses of the parent, parents or other person (as the case may be) so present.

(3)This section is without prejudice to sections 49 (power to assist persons to take advantage of educational facilities) and 50 (education of pupils in exceptional circumstances) of the 1980 Act.

Commencement Information

I28S. 25 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

26Publication of information by education authorityS

(1)Every education authority must—

(a)publish information with respect to the matters specified in subsection (2),

(b)keep that information under review, F116...

(c)where necessary or appropriate, revise the information and publish that revised information [F117, and

(d)provide the persons mentioned in subsection (2A) with any information published under paragraph (a) or (c).]

[F118(e)ensure that a summary of the information published by the authority under this subsection is available—

(i)on request, from each place in the authority's area where school education is provided,

(ii)in any handbook or other publications provided by any school in the authority's area or by the authority for the purposes of providing general information about the school or, as the case may be, the services provided by the authority, and

(iii)on any website maintained by any such school or the authority for that purpose (whether or not the website is also maintained for any other reason),]

(2)The information referred to in subsection (1)(a) is information as to—

(a)the authority’s policy in relation to provision for additional support needs,

(b)the arrangements made by the authority in pursuance of sections 4(1)(b) and 6(1),

(c)the other opportunities available under this Act for the identification of children and young persons who—

(i)have additional support needs,

(ii)require, or would require, a co-ordinated support plan,

(d)the role of parents, children and young persons in the arrangements referred to in paragraph (b),

(e)the mediation services provided in pursuance of section 15(1), and

[F119(ea)any dispute resolution procedures established by the authority in pursuance of section 16,]

(f)the officer or officers of the authority from whom—

(i)parents of children having additional support needs, F120...

[F121(ia)children having additional support needs and who have attained the age of 12 years, and]

(ii)young persons having such needs,

can obtain advice and further information about provision for such needs.

[F122(g)any Health Board for the area or any part of the area of the authority from which the persons referred to in subsection (2)(f)(i) and (ii) can obtain advice, further information and support in relation to the provision for their additional support needs; and

(h)any other persons which the authority think appropriate from which the persons referred to in subsection (2)(f)(i) and (ii) can obtain advice, further information and support in relation to the provision for such needs, including such support and advocacy as is referred to in section 14][F123, and

(i)any other persons specified by the Scottish Ministers by order as persons from which the persons referred to in subsection (2)(f)(i) and (ii) can obtain advice, further information and support in relation to the provision for such needs, including such support and advocacy as is referred to in section 14]

[F124(2A)The persons referred to in subsection (1)(d) are—

(a)in the case of a child with additional support needs for whose school education the authority are responsible, the child's parent,

[F125(aa)in the case of such a child who has attained the age of 12 years, the child,]

(b)in the case of a young person with additional support needs for whose school education the authority are responsible—

(i)the young person, or

(ii)if the authority are satisfied that the young person lacks capacity to understand the information published under this subsection by the authority, the young person's parent.]

(3)The Scottish Ministers may by regulations make further provision as to the publication of information under subsection (1) including, in particular, provision—

(a)amending subsection (2) so as to add further matters,

(b)as to—

(i)the time or times by which, and

(ii)the form and manner in which,

the information is to be published.

Textual Amendments

Commencement Information

I29S. 26(1)(2) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

I30S. 26(3) in force at 18.5.2005 for specified purposes by S.S.I. 2005/263, art. 2, Sch.

I31S. 26(3) in force at 14.11.2005 in so far as not already in force by S.S.I. 2005/564, art. 2

[F12626AAvailability of information on additional support needsS

The Scottish Ministers must report to the Scottish Parliament in each of the five years following the commencement of this section on what progress has been made in each of those years in ensuring that sufficient information relating to children and young persons with additional support needs is available to effectively monitor the implementation of this Act.]

Textual Amendments

27Code of practice and directionsS

(1)The Scottish Ministers must publish, and may from time to time revise and re-publish, a code of practice providing guidance as to the exercise by education authorities and appropriate agencies of the functions conferred on them by virtue of this Act.

(2)Such a code of practice may, in particular, include provision as to—

(a)the particular circumstances or factors which may give rise to additional support needs,

(b)the identification of complex and multiple factors for the purposes of section 2,

(c)the nature of the additional support referred to in section 2(1)(d),

(d)the nature of the additional support to be provided in pursuance of a co-ordinated support plan,

[F127(da)the carrying out of assessments under paragraph (a) of subsection (3) of section 3A,

(db)the consideration of whether something would adversely affect the wellbeing of a child as mentioned in paragraph (b) of that subsection,

(dc)the assessment of whether there has been a significant change in the circumstances of a child as mentioned in section 8(2A)(a),]

(e)the arrangements to be made in pursuance of sections 4(1)(b) and 6(1),

(f)the seeking of information, advice and views under section 12,

(g)the arrangements to be made under section 15(1),

(h)the carrying out of the duties under paragraph 2(1) and (2) of schedule 2,

(i)the particular circumstances when those duties do not apply.

(3)Before publishing a code of practice under subsection (1), the Scottish Ministers must consult—

(a)each education authority and appropriate agency, and

(b)such other persons as they think fit.

(4)The Scottish Ministers must lay before the Scottish Parliament a draft of any code of practice they propose to publish under subsection (1).

(5)The Scottish Ministers must not publish the code until after the expiry of the period of 40 days beginning with the day on which the draft was laid before the Parliament.

(6)The Scottish Ministers must, in the published code of practice, take account of any comments on the draft expressed by the Parliament within that period.

(7)In calculating any period of 40 days for the purposes of subsections (5) and (6), no account is to be taken of any time during which the Parliament is dissolved or is in recess for more than 4 days.

(8)Education authorities and appropriate agencies must, in exercising their functions under this Act, have regard to a code of practice published under this section.

(9)The Scottish Ministers may give to education authorities directions (whether general or specific) as to the exercise of their functions under this Act.

(10)Such directions may be given to all education authorities, to a particular authority or to authorities of a particular description.

(11)Education authorities must comply with any directions given to them under this section.

(12)References in this Act to a code of practice published under this section include any revised code of practice re-published under this section.

Textual Amendments

Commencement Information

I32S. 27 in force at 18.5.2005 by S.S.I. 2005/263, art. 2, Sch.

[F12827ACollection of data on additional support needsS

[F129(1)The Scottish Ministers must each year collect from each education authority such information as is specified in regulations made by the Scottish Ministers relating to children and young persons having additional support needs for whose school education the authority is responsible.

(1A)Before making regulations under subsection (1), the Scottish Ministers must consult such persons as they consider appropriate.]

(2)The Scottish Ministers must publish the information collected each year under subsection (1).

(3)The Scottish Ministers may (after consulting such persons as they consider appropriate) by regulations specify the format in and method by which the information mentioned in subsection (1) is to be—

(a)provided to, and

(b)published by,

them.]

Textual Amendments

F129S. 27A(1)(1A) substituted for s. 27A(1) (1.1.2017 for specified purposes, 10.1.2018 in so far as not already in force) by Education (Scotland) Act 2016 (asp 8), s. 33(2), sch. para. 20; S.S.I. 2016/386, reg. 2, sch.; S.S.I. 2017/354, reg. 2(a)

GeneralS

28Requests under this Act: further provisionS

(1)References in this Act to a “request” are to a request which—

(a)is in—

(i)writing, or

(ii)another form which, by reason of its having some permanence, is capable of being used for subsequent reference (as, for example, an audio or video recording), and

(b)contains a statement of the reasons for making the request.

(2)Where an education authority decide not to comply with any request made to them under this Act, the authority must—

(a)inform the person who made the request of that decision,

(b)in so doing, give reasons for the decision,

(c)except where the request was of the type specified in section 7(2)(b), provide the person who made the request with information as to—

(i)the mediation services provided in pursuance of arrangements made by the authority under section 15(1), and

(ii)any procedures for the resolution of disputes established by the authority in pursuance of any regulations under section 16,

(d)where the request was made under section 6(2)(b) or 10(4), inform the person who made the request of the right under section 18(1) to refer the decision to [F130the First-tier Tribunal] , and

(e)where the request was a placing request, inform the person who made the request of—

(i)the right under paragraph 5 of schedule 2 to refer the decision to an appeal committee, or

(ii)the right under section 18(1) to refer the decision to [F131the First-tier Tribunal],

(as appropriate).

Textual Amendments

Commencement Information

I33S. 28 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

29InterpretationS

(1)In this Act—

(2)In this Act, the following expressions have the meanings given in section 135(1) of the 1980 Act—

(3)In this Act [F139and subject to subsection (3A) ], references to a child or young person for whose school education an education authority are responsible are to any child or young person being, or about to be, provided with school education—

(a)in a school under the management of the education authority, or

(b)in pursuance of arrangements made or entered into by the authority.

[F140(3A)For the purposes of this Act, where arrangements are made or entered into by an education authority in respect of the school education of a child or young person with another education authority, the authority responsible for that school education is the authority for the area to which the child or young person belongs despite the education being, or about to be, provided in a school under the management of another authority.]

(4)In this Act, references to a child or young person belonging to an area are to be construed in accordance with section 23(3) of the 1980 Act.

( 5 )In this Act, references to the doing of anything in writing include references to the doing of that thing by means of a document—

(a)transmitted by electronic means,

(b)received in legible form, and

(c)capable of being used for subsequent reference.

Textual Amendments

Modifications etc. (not altering text)

30Transitional provision: recorded children and young personsS

(1)This section applies to any child or young person—

(a)for whose school education an education authority are, at the commencement date, responsible, and

(b)who, immediately before that date, was a recorded child or young person within the meaning of the 1980 Act.

(2)Such a child or young person is, for the purposes of this Act, to be taken to have additional support needs.

(3)The education authority must, before the end of the period of 2 years beginning with the commencement date, establish, in accordance with the arrangements made by them under section 6(1), whether the child or young person requires a co-ordinated support plan.

(4)Until the appropriate date, the education authority must ensure that the provision made by them in pursuance of section 4(1)(a) for the additional support required by the child or young person is no less than the provision which was, immediately before the commencement date, made for the child or young person under section 62(3) (duty of education authority to provide for special educational needs of recorded children and young persons) of the 1980 Act.

(5)In subsection (4), “the appropriate date” means—

(a)where the education authority establish in pursuance of subsection (3) that the child or young person requires a co-ordinated support plan, the date on which they so establish that matter,

(b)where the authority establish in pursuance of that subsection that the child or young person does not require such a plan, the date of expiry of the period of 2 years beginning with the date on which they so establish that matter, or

(c)if there is a significant change in the child’s or young person’s additional support needs, the date on which the authority establish the occurrence of that change,

whichever occurs first.

(6)In this section—

Commencement Information

I34S. 30 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

31Duty to inform in writing or alternative permanent formS

Where an education authority are, under this Act, to inform a parent [F141, child who has attained the age of 12 years] or young person of any matter, they must do so—

(a)in writing, or

(b)in such other form as the parent [F142, child] or young person may reasonably require, being a form which, by reason of its having some permanence, is capable of being used for subsequent reference (as, for example, an audio or video recording).

Textual Amendments

Commencement Information

I35S. 31 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

[F14331AProvision of support serviceS

(1)The Scottish Ministers must secure the provision of a support service to be available, on request and free of charge, to children who have attained the age of 12 years and—

(a)who wish to exercise, or are considering exercising, relevant rights, or

(b)whose parents wish to exercise, or are considering exercising, relevant rights.

(2)In this section, “a support service” means a service under which—

(a)advice (including legal advice), assistance and information in relation to relevant rights are provided to children mentioned in subsection (1),

(b)a person is provided to be present at any discussions with an education authority in relation to the relevant rights of such a child for the purpose of supporting the child (where the child wishes such a person to be present),

(c)a person is provided to conduct such discussions (or any part of them), or make representations to an education authority, on behalf of such a child (where the child wishes such a person to be provided), and

(d)an advocacy service (within the meaning of subsection (3) of section 14A) is provided to such children (the reference in that subsection to persons mentioned in subsection (2) being read as if such children were mentioned in that subsection).

(3)Subsection (4) applies where—

(a)a child, or parent, as mentioned in subsection (1) wishes to exercise, or is considering exercising, relevant rights, or

(b)some other thing is done, or proposed to be done, under this Act by or in relation to such a child.

(4)Any person providing a support service under this section may seek the views of the child as respects—

(a)the exercise of the relevant rights, or

(b)the doing, or proposed doing, of the thing.

(5)In this section, “relevant rights”—

(a)in relation to a child who has attained the age of 12 years, means any rights conferred by or under this Act on such children, and includes the right—

(i)to receive any document or information, and

(ii)to give consent in relation to any matter, and

(b)in relation to the parents of such a child, means any rights conferred on the parents by or under this Act.]

Textual Amendments

32Ancillary provisionS

The Scottish Ministers may by order make such incidental, supplemental, consequential, further transitional, transitory or saving provision as they consider necessary or expedient for the purposes or in consequence of this Act.

33Modification of enactmentsS

Schedule 3 makes modifications of enactments in consequence of this Act.

Commencement Information

I36S. 33 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

34Orders, regulations and rulesS

(1)Any power of the Scottish Ministers to make orders, regulations or rules under this Act is exercisable by statutory instrument.

(2)Any such power includes power to make—

(a)such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,

(b)different provision for different purposes.

(3)An order under section 32 may modify any enactment, instrument or document.

(4)A statutory instrument containing an order, regulations or rules under this Act (except [F144section 3B(3),] section 17(5), section 32 (where subsection (5) applies) and section 35) is subject to annulment in pursuance of a resolution of the Scottish Parliament.

(5)No—

(a)order under sections 20 and 32 containing provisions which add to, replace or omit any part of the text of an Act, or

(b)regulations under section [F1453B(3) or] 17(5),

is or are to be made unless a draft of the statutory instrument containing the order or regulations has been laid before, and approved by a resolution of, the Parliament.

Textual Amendments

35Commencement and short titleS

(1)The provisions of this Act, other than sections 29, 32 and 34 and this section, come into force on such day as the Scottish Ministers may by order appoint.

(2)This Act may be cited as the Education (Additional Support for Learning) (Scotland) Act 2004.

F146SCHEDULE 1SAdditional Support Needs Tribunals for Scotland

(introduced by section 17)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

SCHEDULE 2SChildren and young persons with additional support needs: placing requests

(introduced by section 22)

IntroductoryS

1SSections 28A, 28C, 28E, 28F and 28G of the 1980 Act (which make provision as to the making of placing requests and appeals in relation to the refusal of such requests) do not apply in relation to children and young persons having additional support needs and instead the provisions of this schedule apply in relation to such children and young persons.

Commencement Information

I37Sch. 2 para. 1 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Duty to comply with placing requestsS

2(1)Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.S

(2)Where the parent of a child having additional support needs makes a request to the education authority for the area to which the child belongs to place the child in the school specified in the request, not being a public school but being—

(a)a special school the managers of which are willing to admit the child,

(b)a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs, or

(c)a school at which education is provided in pursuance of arrangements entered into under section 35 of the 2000 Act,

it is the duty of the authority, subject to paragraph 3, to meet the fees and other necessary costs of the child’s attendance at the specified school.

(3)A request made under sub-paragraph (1) or (2) is referred to in this Act as a “placing request” and the school specified in it is referred to in this schedule as the “specified school”.

(4)Where a placing request relates to 2 or more schools being—

(a)schools under the management of the education authority to whom it is made, or

(b)schools mentioned in sub-paragraph (2)(a), (b) or (c) the managers of which are willing to admit the child in respect of whom the request is made,

the duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) applies in relation to the first mentioned such school, which is to be treated for the purposes of this schedule as the specified school.

[F147(5)In sub-paragraph (1), the reference to an education authority includes an education authority which are not responsible for the school education of the child.]

Textual Amendments

Commencement Information

I38 Sch. 2 para. 2 in force at 14.11.2005 by S.S.I. 2005/564 , art. 2

Circumstances in which duty does not applyS

3(1)The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply—S

(a)if placing the child in the specified school would—

(i)make it necessary for the authority to take an additional teacher into employment,

(ii)give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,

(iii)be seriously detrimental to the continuity of the child’s education,

(iv)be likely to be seriously detrimental to order and discipline in the school,

(v)be likely to be seriously detrimental to the educational well-being of pupils attending the school,

(vi)assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at the school, or

(vii)though neither of the tests set out in paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers,

(b)if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child,

(c)if the education authority have already required the child to discontinue attendance at the specified school,

(d)if, where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,

(e)if the specified school is a single sex school (within the meaning of [F148substitute “paragraph 1(2) of Part 1 of Schedule 11 to the Equality Act 2010]) and the child is not of the sex admitted or taken (under that [F149paragraph]) to be admitted to the school,

(f)if all of the following conditions apply, namely—

(i)the specified school is not a public school,

(ii)the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,

(iii)it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in the specified school, and

(iv)the authority have offered to place the child in the school referred to in paragraph (ii), or

(g)if, where the specified school is a special school, placing the child in the school would breach the requirement in section 15(1) of the 2000 Act.

(2)An education authority may place a child in the specified school notwithstanding sub-paragraph (1)(a) to (e).

(3)The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply where the acceptance of a placing request in respect of a child who is resident outwith the catchment area of the specified school would prevent the education authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school.

(4)Nothing in sub-paragraph (3) prevents an education authority from placing a child in the specified school.

(5)In sub-paragraph (3), “reserved places” means such number of places (not exceeding such number or, as the case may be, such percentage of places at the school or relating to the particular stage of education as the Scottish Ministers may by regulations prescribe) as are in the opinion of the education authority reasonably required to accommodate pupils likely to become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1st August to which the placing request relates.

(6)In sub-paragraphs (3) and (5) “catchment area”, in relation to a school, means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of the 1980 Act.

Textual Amendments

F148Words in Sch. 2 para. 3(1)(e) substituted by 2010 c. 15 Sch. 26 Pt. 2 para. 106(a) (as inserted (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 6 (see S.I. 2010/2317, art. 2))

F149Words in Sch. 2 para. 3(1)(e) substituted by 2010 c. 15 Sch. 26 Pt. 2 para. 106(b) (as inserted (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 6 (see S.I. 2010/2317, art. 2))

Commencement Information

I39Sch. 2 para. 3(1)-(4) (6) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

I40Sch. 2 para. 3(5) in force at 14.11.2005 for specified purposes by S.S.I. 2005/564, art. 2

Placing requests: further provisionS

4(1)An education authority must inform a parent in writing of their decision on a placing request made by the parent.S

(2)On complying with a placing request relating to a child for whom a co-ordinated support plan has been prepared (and not discontinued), an education authority must modify accordingly the nomination in the plan of a school to be attended by the child.

[F150(2A)Sub-paragraph (2) does not apply where the placing request was made to an education authority which, at the time of the request, were not responsible for the school education of the child.]

(3)The Scottish Ministers may, by regulations, make provision for deeming an education authority to have refused a placing request in the event of their not having informed the parent of their decision on it in accordance with sub-paragraph (1) within such period or before such date as may be prescribed in the regulations.

Textual Amendments

Commencement Information

I41Sch. 2 para. 4(1)(2) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

I42Sch. 2 para. 4(3) in force at 18.5.2005 for specified purposes by S.S.I. 2005/263, art. 2, Sch.

I43Sch. 2 para. 4(3) in force at 14.11.2005 in so far as not already in force by S.S.I. 2005/564, art. 2

Reference to appeal committee of refusal of placing requestS

5(1)A parent who has made a placing request may refer a decision of the education authority refusing the request to an appeal committee set up under section 28D of the 1980 Act.S

(2)Sub-paragraph (1) does not apply where the decision of the education authority refusing the request may be referred to [F151the First-tier Tribunal] under section 18(1).

(3)Where a reference under this paragraph has been made in respect of a child, no further such reference in respect of the child is competent during the period of 12 months beginning with the day on which the immediately preceding such reference was lodged.

(4)A reference under this paragraph must be lodged with the appeal committee within 28 days of the receipt by the parent of the decision of the education authority.

(5)For the purposes of sub-paragraph (4), a decision which is posted is to be presumed to have been received (unless the contrary is proved)—

(a)on the day after the date on which it was posted, or

(b)if posted on a Friday or Saturday, on the Monday next following.

(6)The committee may, on good cause being shown, hear such a reference notwithstanding that it was not lodged within the time mentioned in sub-paragraph (4).

Textual Amendments

Commencement Information

I44Sch. 2 para. 5 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

References to appeal committees: suplementary provisionsS

6(1)An appeal committee may, on a reference made to them under paragraph 5,[F152 (including such a reference relating to a decision which has been referred back under section 19(5)(d) or (e))] confirm the education authority’s decision if they are satisfied that—S

(a)in relation to the placing request, one or more of the grounds of refusal specified in paragraph 3(1) or (3) exists or exist, and

(b)in all the circumstances it is appropriate to do so,

but otherwise must refuse to confirm the authority’s decision.

(2)Where they so refuse, the appeal committee shall require the education authority—

(a)in the case of a placing request made under paragraph 2(1), to place the child in the specified school,

(b)in the case of a placing request made under paragraph 2(2), to meet the fees and other necessary costs of the child’s attendance at the specified school,

and the authority must comply with that requirement.

(3)An appeal committee must notify their decision under this paragraph and the reasons for it in writing to the parent who made the reference and to the education authority and, where they confirm the authority’s decision, they must inform the parent of the right of appeal to the sheriff under paragraph 7.

(4)Sub-paragraph (5) applies where—

(a)after a reference is made to an appeal committee under paragraph 5, but

(b)before the committee has disposed of the reference,

[F153 the things mentioned in any of paragraphs (a), (b), (ba) and (c) of section 18(4) occur.]

(5)Where this sub-paragraph applies—

(a)the appeal committee must transfer the reference to the [F154First-tier Tribunal] , and

(b)on being so transferred, the reference is to be treated as if made to the [F154First-tier Tribunal] under section 18(1).

(6)The Scottish Ministers may by regulations make provision for procedure in relation to references under paragraph 5 and any such regulations may, in particular, include provision—

(a)requiring an education authority to make information relevant to their decision available to the appeal committee and to the parent referring the decision to the committee,

(b)deeming, for the purposes of this Act, an appeal committee to have confirmed the decision of an education authority on a placing request if the committee has not complied with sub-paragraph (3) of this paragraph within such period or before such date as may be prescribed in the regulations.

Textual Amendments

Commencement Information

I45Sch. 2 para. 6(1)-(5) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

I46Sch. 2 para. 6(6) in force at 18.5.2005 for specified purposes by S.S.I. 2005/263, art. 2, Sch.

I47Sch. 2 para. 6(6) in force at 14.11.2005 in so far as not already in force by S.S.I. 2005/564, art. 2

Appeal to sherrif from appeal committeeS

7(1)A parent who has made a reference to an appeal committee under paragraph 5 [F155(including such a reference relating to a decision which has been referred back under section 19(5)(d) or (e))] may appeal to the sheriff against the decision of the appeal committee on that reference.S

[F156(1A)Sub-paragraph (1) does not apply where the decision of the appeal committee may be referred to [F157the First-tier Tribunal] under section 18(1).]

(2)The education authority may, but the appeal committee may not, be a party to an appeal under this paragraph.

(3)An appeal under this paragraph—

(a)is to be made by way of summary application,

(b)must be lodged with the sheriff clerk within 28 days from the date of receipt of the decision of the appeal committee, and

(c)is to be heard in chambers.

(4)For the purposes of sub-paragraph (3)(b), a decision which is posted is to be presumed to have been received (unless the contrary is proved)—

(a)on the day after the date on which it was posted, or

(b)if posted on a Friday or Saturday, on the Monday next following.

(5)On good cause being shown, the sheriff may hear an appeal under this paragraph notwithstanding that it was not lodged within the time mentioned in sub-paragraph (3)(b).

(6)The sheriff may, on an appeal made under this paragraph, confirm the education authority’s decision if satisfied that—

(a)in relation to the placing request, one or more of the grounds of refusal specified in paragraph 3(1) or (3) exists or exist, and

(b)in all the circumstances, it is appropriate to do,

but otherwise must refuse to confirm the authority’s decision.

(7)Where the sheriff so refuses, the sheriff must require the education authority—

(a)in the case of a placing request made under paragraph 2(1), to place the child in the specified school,

(b)in the case of a placing request made under paragraph 2(2), to meet the fees and other necessary costs of the child’s attendance at the specified school,

and the authority must comply with that requirement.

(8)Sub-paragraph (9) applies where—

(a)after an appeal is made to the sheriff under this paragraph, but

(b)before the sheriff has disposed of the appeal,

[F158the things mentioned in any of paragraphs (a), (b), (ba) and (c) of section 18(4) occur. ]

(9)Where this sub-paragraph applies—

(a)the sheriff must transfer the appeal to the [F159First-tier Tribunal] , and

(b)on being so transferred, the appeal is to be treated as if it were a reference made to the [F159First-tier Tribunal] under section 18(1).

(10)The sheriff may make such order as to the expenses of an appeal under this paragraph as the sheriff thinks fit.

(11)The judgment of the sheriff on an appeal under this paragraph is final.

[F160(12)Any references to an appeal under this paragraph (however expressed), except such references in sub-paragraphs (3)(a) and (b) and (5), include references to an appeal relating to a decision which has been referred back under section 19(5)(f) or (g).]

Textual Amendments

Commencement Information

I48Sch. 2 para. 7 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Young persons having additional support needsS

8(1)Paragraphs 2 to 7 apply to a young person having additional support needs as they apply to a child having such needs.S

(2)For the purposes of the application of those provisions to a young person having additional support needs references in the provisions to the parent of a child having additional support needs (as well as references to the child) are to be construed as references to the young person.

(3)Sub-paragraph (2) does not apply in a case where the education authority are satisfied that the young person lacks capacity to do anything which the parent of a child may do under the provision concerned.

Commencement Information

I49Sch. 2 para. 8 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

SCHEDULE 3SModification of enactments

(introduced by section 33)

Teaching Council (Scotland) Act 1965 (c.19)S

F1611S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I50Sch. 3 para. 1 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

National Health Service (Scotland) Act 1978 (c.29)S

2SIn the National Health Service (Scotland) Act 1978, in section 16A (power to make payments towards expenditure on community services), in subsection (1)—

(a)in paragraph (b)—

(i)sub-paragraph (i) is repealed, and

(ii)for “those terms” substitute “ that term ”,

(b)after paragraph (b) insert—

“(ba)any functions under section 4 or 5 of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) in making provision for additional support needs;”.

Commencement Information

I51Sch. 3 para. 2 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Education (Scotland) Act 1980 (c.44)S

3(1)The Education (Scotland) Act 1980 is amended as follows.S

(2)In section 1(5) (definitions of certain terms)—

(a)in paragraph (a), sub-paragraph (ii) is repealed,

(b)paragraphs (c) and (d) are repealed.

(3)In section 4 (duty of education authority to provide a psychological service)—

(a)the words “in clinics or elsewhere” are repealed,

(b)in paragraph (a), for “with special educational needs” substitute “ having additional support needs ”,

(c)in paragraph (c)—

(i)for “special educational needs” substitute “ additional support needs ”,

(ii)the words “in clinics” are repealed.

(4)In section 23 (provision by education authority for education of pupils belonging to areas of other authorities)—

(a)in subsection (1), after “Act” insert “ or additional support within the meaning of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) (referred to in this section as “the 2004 Act”) ”,

(b)in subsection (1A)—

(i)after “Act” in the first place where it occurs insert “ or any provision of the 2004 Act ”,

(ii)after “Act” in the second place where it occurs insert “ or their functions under sections 4 and 5 of the 2004 Act ”,

(iii)after “education” in the fourth place where it occurs insert “ or additional support within the meaning of the 2004 Act ”,

(c)in subsection (1B), after “Act” insert “ or the 2004 Act ”,

(d)in subsection (2), after “authority” in the second place where it occurs insert “ or have provided additional support within the meaning of the 2004 Act for any such pupil, ”,

(e)in subsection (3)—

(i)the words from “1(5)(c)” to “Act)” are repealed,

(ii)for the words “51 and 60 to 65F” substitute “ and 51 ”,

(iii)after “Act” in the second place where it occurs insert “ and for the purposes of the 2004 Act ”.

(5)In section 28A(3) (circumstances in which the duty to comply with placing requests does not apply), in paragraph (d), for “special educational needs” substitute “ additional support needs ”.

(6)In section 28B (information as to placing in schools and other matters), after subsection (1) insert—

“(1A)In the application of subsection (1)(b)(ii) above in relation to a child who has additional support needs—

(a)for the reference to section 28A(1) and (2) of this Act there shall be substituted a reference to paragraph 2 of schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), and

(b)“placing request” means a placing request within the meaning of that Act.”.

(7)In section 28D (appeal committees), in subsection (1)—

(a)for the words “, 28H and 63” substitute “ and 28H ”, and

(b)after “Act” insert “ and paragraph 5 of schedule 2 to the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) ”.

(8)In section 28E (reference to appeal committee of refusal of placing request), subsection (2) is repealed.

(9)In section 38(2) (schools which may be named in attendance orders), in paragraph (b), for “is a recorded child” substitute “ has additional support needs requiring the education or special facilities normally provided at the school ”.

(10)In section 40 (period of operation of attendance orders), the proviso is repealed.

(11)In section 54(4) (provision of clothing for pupils at public schools), for paragraph (b) substitute—

“(b)a child or young person—

(i)having additional support needs, and

(ii)who is, for the purposes of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4), a child or young person for whose school education an education authority are responsible by virtue of section 29(3)(b) of that Act,

shall be deemed to be attending a school under the management of that authority.”.

(12)Sections 60 to 65G are repealed.

(13)In section 135 (interpretation)—

(a)in subsection (1)—

(i)at the appropriate place, in alphabetical order, insert the following definition—

(ii)the definitions of “psychological examination”, “Record” and “recorded”, and “special educational needs” are repealed,

(iii)in the definition of “special school”, for the words from “means” to the end substitute “ has the meaning given in section 29(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) ”,

(b)in subsection (2), in each of paragraphs (a)(ii) and (b)(ii)—

(i)for “with special educational needs” substitute “ having additional support needs ”,

(ii)for “his special educational needs” substitute “ those needs ”.

(14)Schedule A2 is repealed.

Commencement Information

I52Sch. 3 para. 3(1)-(6)(7)(b)(8)-(14) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Education (Scotland) Act 1981 (c.58)S

4SIn the Education (Scotland) Act 1981, the following provisions are repealed—

(a)section 3(1) (special educational needs),

(b)section 4(1) and (3) (children and young persons with certain special educational needs),

(c)in Schedule 2—

(i)paragraph 4(a)(ii), and

(ii)paragraphs 6 to 8, and

(d)Schedule 3.

Commencement Information

I53Sch. 3 para. 4 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Disabled Persons (Services, Consultation and Representation) Act 1986 (c.33)S

5SIn the Disabled Persons (Services, Consultation and Representation) Act 1986, the following provisions are repealed—

(a)section 13 (disabled persons leaving special education: Scotland),

(b)in section 14 (assessment and recording of children and young persons), subsections (3) to (6).

Commencement Information

I54Sch. 3 para. 5 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Self-Governing Schoolsetc. (Scotland) Act 1989 (c.39)S

6SIn the Self-Governing Schools etc. (Scotland) 1989, the following provisions are repealed—

(a)section 71,

(b)section 72, and

(c)in Schedule 10, paragraph 8(2).

Commencement Information

I55Sch. 3 para. 6 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Further and Higher Education(Scotland) Act 1992 (c.37)S

7SIn the Further and Higher Education (Scotland) Act 1992, the following provisions are repealed—

(a)section 23 (duties of boards of management as regards recorded children),

(b)in Schedule 9 (miscellaneous and consequential amendments), paragraph 7(4).

Commencement Information

I56Sch. 3 para. 7 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Tribunals and Inquiries Act 1992 (c.53)S

8SIn Part II of Schedule 1 to the Tribunals and Inquiries Act 1992 (tribunals under the supervision of the Scottish Committee of the Council on Tribunals), in paragraph 50, after sub-paragraph (b) insert—

“(ba)Additional Support Needs Tribunals for Scotland constituted under section 17(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4).”.

Commencement Information

I57Sch. 3 para. 8 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Children (Scotland) Act 1995 (c.36)S

9SIn the Children (Scotland) Act 1995, in Schedule 4 (minor and consequential amendments), paragraph 28(4) is repealed.

Commencement Information

I58Sch. 3 para. 9 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Education (Scotland) Act 1996 (c.43)S

10SIn the Education (Scotland) Act 1996—

(a)in section 4 (quality assurance), in paragraph (a), for “with special educational needs” substitute “ having additional support needs within the meaning of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) ”,

(b)in section 33(1) (placing requests), the words “and that section as substituted for certain purposes by Schedule A2 to that Act” are repealed.

Commencement Information

I59Sch. 3 para. 10 in force at 14.11.2005 by S.S.I. 2005/564, art. 2

Standards in Scotland's Schools etc. Act 2000 (asp 6)S

11SIn the Standards in Scotland’s Schools etc. Act 2000, sections 43(4) and 44(7) are repealed.

Commencement Information

I60Sch. 3 para. 11 in force at 14.11.2005 by S.S.I. 2005/564, art. 2