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Scottish Policy Overview - Disabled Children and Education
We are trying to help to give information on Scottish education that impact directly on the lives of disabled children.
Increasingly agencies are expected to work in an integrated way, to enable co-ordination and consistency of approach.Whilst this factsheet focuses on duties of education authorities, these should be considered in light of the need for educationalists to work closely in partnership with others to promote a holistic approach to providing for disabled children.
Consideration is given to four major pieces of legislation that place duties on education services within Scotland:
1. Education (Scotland) Act 1980 as amended;
2. Children (Scotland) Act 1995;
3. Standards in Scotland's Schools etc. Act 2000;
4. Disability Discrimination Act 1995 as amended.
Education authorities' duties to all children
Education authorities have a duty to secure "adequate and efficient provision of school education for their area" (Section 1, Education (Scotland) Act 1980).The term "school education" specifically includes "provision for special educational needs" (SEN).
Parents have a duty to ensure their children, of school age, receive efficient education suitable to their children's age, ability and aptitude (Section 30(1), Education (Scotland) Act 1980).This education need not be in a local authority school. Children may be home educated or receive their education in an independent school.
Every child of school age has a right to school education in a local authority school (Section 1, Standards in Scotland's Schools etc. Act 2000). Such education must be directed to developing" the personality, talents, and mental and physical abilities of the child or young person to their fullest potential" (Section 2 (1), Standards in Scotland's Schools etc. Act 2000). A child's or young person's views must be given due regard in decisions that significantly affect the child or young person, as far as is reasonably practicable (Section 2 (2)).
Education authorities must produce annual statements of improvement objectives.These are based on national priorities set by the Scottish Executive.These statements must include ways in which equal opportunities will be addressed including requirements set out in the Disability Discrimination Act 1995 (Section 5, Standards in Scotland's Schools etc. Act 2000). School must produce annual school development plans that take account of the education authorities' annual statements (Section 6).Thus schools too will have to outline how they will encourage equal opportunities and meet anti-discrimination requirements.
Education authorities should provide education within a mainstream setting rather than a special school. In particular circumstances, however, children can be educated in a special school. These circumstances are when the mainstream setting:
1. would not suit the child's ability or aptitude;
2. would not be compatible with the efficient education ofother children in the mainstream setting;
3. would result in unreasonable public expenditure that would not ordinarily happen.
The law underlines that these circumstances will only arise exceptionally. A child's views and the parents' must be taken into account before a placement is made. (Section 15, Standards in Scotland's Schools etc. Act 2000)
If a child has a Record of Needs, a school will be named in the Record taking into account parental preferences. (See section on Record of Needs.)
Independent of the above, parents also have the right to make a placing request for a particular school.Young people aged 16 or over can also make a placing request if they have a Record of Needs. Such a request can be refused for reasons set out in the Education (Scotland) Act 1980 as amended (Section 28A or Sched A2).
Meeting children's educational needs
A system of individualised educational programmes (IEPs) for pupils has been introduced in Scotland.
Children or young people are said to have special educational needs (SEN) if they have a learning difficulty which means they require additional or specialised education. Children or young people are considered to have a learning difficulty if they:
1. have significantly greater difficulty in learning than the majority of their age group; or
2. have a disability that either prevents or hinders themfrom making use of educational facilities of a kindgenerally provided for those of their age in schoolsmanaged by their education authority; or
3. are under five years old and would otherwise be considered to have a learning difficulty without provision. (Section 1 (5) (d), Education (Scotland) Act 1980 as amended.)
Education services are advised to follow a staged approach to the assessment and identification of SEN.The stages proposed are:
1. pre-school identification and assessment;
3. information provision;
4. initial assessment;
5. completion of first round of assessments.
(The process would end here if no special educational needs were identified.)
a. profile of needs;
b. provision is made (a Record of Needs can be opened, see below);
c. review of progress;
d. preparation for school;
e. post-placement review.
These stages are laid out in the report titled Effective provision for special educational needs (1994).
Record of Needs
For a small number of children with "pronounced, specific or complex special educational needs which are such as require continuing review", education authorities must open a Record of Needs (Section 60(2), Education (Scotland) Act 1980 as amended). Requirements for Record of Needs are detailed in the Education (Scotland) Act 1980 as amended and the Education (Record of Needs) (Scotland) Regulations 1982.These include assessments, the contents of the records, reviews and appeals. Parents and young people have certain rights in regard to these.A Record has nine parts, including:
a. an assessment profile;
b. a summary of the child's or young person's impairments;
c. a statement of the special educational needs arising from those impairments;
d. a statement of the measures proposed by the education authority to be taken to meet the SEN;
e. the school to be attended;
f. the views of the parents or young person.
For further information on legislative requirements, government guidance and advice for SEN see:
a. National Guidance: Children and young persons with specialeducational needs (1996) Circular 4/96
b. Effective provision for special educational needs (EPSEN) (1994)
c. A manual of good practice in special educational needs(1999)
d. The parents' guide to special educational needs (2000)
Currently, an entire review of the identification and assessment process is taking place. Consultation on "Assessing our children's educational needs:The way forward?" concluded at the end of July 2001.The Scottish Executive announced recommendations for a new SEN framework in February 2002. Key recommendations include:
1. replacing the Record of Needs with a strengthened and more streamlined intervention process, where a new, flexible co-ordinated support plan will be put in place for children with the most complex need;
2. local authorities to provide more information for parentsof children with additional support needs, and to have mediation services in place which will aim to resolve any disputes at an early stage;
3. l extended rights of appeal for parents and young people to allow them to challenge the level of provision proposed in the co-ordinated support plan.
The report Assessing our children's educational needs: The way forward? can be obtained directly from the Scottish Executive website at http://www.scotland.gov.uk - under publications.
The SEN and Disability Act 2001 extended disability discrimination legislation to more fully cover education.The duties make it unlawful to discriminate, without justification, against disabled pupils and prospective pupils, in all aspects of school life.
A disability is defined here as "a physical or mental impairment which has a substantial, long-term, adverse affect on [a person's] ability to carry out normal day to day activities' (Section 1)
The new duties apply to all responsible bodies - ie those who manage schools, including independent schools and some types of pre-school provision.There are similar duties which apply to the rest of the pre-school sector and to further and higher education. In summary, discrimination against a disabled child can occur in two possible ways. Discrimination is either:
a. treating a disabled pupil or prospective pupil less favourably, for a reason relating to his or her disability than someone to whom that reason does not apply, without justification;
b. failing to take reasonable steps to ensure that disabled pupils or prospective pupils are not placed at a substantial disadvantage in comparison with their nondisabled peers without justification.This is known as the reasonable adjustments duty.
The Act specifies three elements as being covered by the school duties: admissions, exclusion, plus education and associated services.
These duties came into force in September 2002.The new duties will be complemented by the accessibility strategies for schools.The Education (Disability Strategies and Pupils' Educational Records) (Scotland) Act 2002, requires local authorities and other school managers to plan systematically for increased access to education, for pupils and prospective pupils with disabilities. Access refers to the physical environment as well as access to the curriculum and information. Responsible bodies have until April 2003 to produce their first strategy.
For further information on the anti-discrimination duties, the Code of Practice for Schools and Post -16, contact the Disability Rights Commission (see contacts below); a copy of the Education (Disability Strategy and Pupils' Educational Records) (Scotland) Act 2002 is available from HMSO , visit www.scotland-legislation.hmso.gov.uk
Appeals and complaints
If parents are not satisfied with the provision that a school makes to meet their child's special educational needs, they can complain to the school and education authority.
In certain circumstances, where other avenues to resolve any disagreement have been exhausted, they can complain to the Scottish Ministers [Section 70, Education (Scotland) Act 1980] about any aspect of school education, including provision for special educational needs.
If parents do not agree with decisions made by the education authority about the nature of their child's needs as set out in the Record of Needs, or about a decision on whether to open or discontinue a Record of Needs, they have a right of appeal to an Education Authority Appeal Committee, set up under section 28D of the 1980 Act who must refer the case to the Scottish Ministers for a decision.
If parents disagree with the school proposed by the education authority on the Record of Needs, and make a placing request to an alternative school, they may appeal to the Education Authority Appeal Committee (section 63(1)( C), and from there
to the Sheriff Court. Scottish Ministers may be asked for their views.
If a disabled child has been unlawfully discriminated against, the child (or parents on their behalf) may bring legal proceedings in the Sheriff Court. Conciliation services may be available through the Disability Rights Commission. (For further information, contact the Disability Rights Commission. See contacts below) (See Enquire's Appeals factsheet for more information)
An education authority must undertake a Future Needs Assessment (FNA) for every young person with a Record of Needs.Young people without a record are not excluded from having a FNA or transitional planning meeting.A FNA and any subsequent reviews provide a framework for considering and planning for the needs of the young person in the last years of schooling to identify the range of options available upon leaving school.A Future Needs Assessment must be undertaken during
the period beginning two years before the child reaches school leaving age and ending nine months before then. Parents and young people have certain rights to receive reports etc in legislation but they have no statutory right of appeal.
Specifically, the future needs assesment will:
1. consider whether the child would benefit from school education after the child reaches school leaving age. If so, the FNA will consider whether the Record should be continued
2. consider choices available in post-school provision
3. plan the final years of schooling
4. obtain an opinion from the local authority social work service as to whether the child is disabled.
The views of a social worker are required by Section 13 of the Disabled Persons (Services Consultation and Representation) Act 1986. If the child is considered disabled under this Act, the child will be entitled to a range of services. Further, the 1986 Act requires FNA reports to be reviewed.
A child at the age of 16 can be eligible for community care services under the NHS and Community Care Act 1990. Good practice would suggest that social work services also consider access to available community care services within the FNA process.
Further consideration of transitional procedures into further and higher education are covered in the code of practice on post-16 provision.This is available from the Disability Rights Commission at www.drc.org.uk
Children affected by disabilities
Under the Children (Scotland) Act 1995, local authorities must provide services for children in need. Children with and/or adversely affected by the disability of a family member are defined as children in need (Section 93 (4) (a)). A child is defined up to the age of 18.
Local authorities must provide a range and level of services to:
1. safeguard and promote the welfare of children in their area who are in need
2. promote the upbringing of children in need by their families (Section 22).
Local authorities must provide day care for children aged five or less, after-school and holiday care for children in need (Section 27).
Local authorities' services for children in need must:
1. be designed to minimise the effect of the disability on a disabled child (or child adversely affected by the disability of another family member) (Section 23)
2. be designed to give children affected by a disability the "opportunity to lead lives which are as normal as possible" (Section 23)
3. as far as is practicable, due regard must be given to a child's "religious persuasion, racial origin and cultural and linguistic background" (Section 22).
Parents can request an assessment for their child affected by disabilities. The local authority must then undertake such an assessment, with regard to children in need services. Unlike the Record of Needs (see above), the 1995 Act does not specify further legal requirements in terms of the nature of the assessment, contents of the assessment or resulting service provision.
A person is disabled if the person is "chronically sick or disabled or suffers from mental disorder (within the meaning of the Mental Health (Scotland) Act 1984)" (Section 23 (2)). Mental disorder is defined in the 1984 Act as both mental illness and mental handicap (Section 1).
These duties rest on all local authority services - including education. Further, local authorities can request assistance from other statutory services, such as health (Section 21).Thus education authorities have proactive duties under the 1995 Act to provide inclusive opportunities to disabled children.
Similarly, a children's hearing can require local authorities to provide particular services for a child under "compulsory measures of supervision" (Section 70). Children's hearings are the unique Scottish system that deals with both children who offend and/or those in need of care and protection.A compulsory measure of supervision could specify where the child could reside (eg a residential school) or other conditions on the child. Legal procedures are established by the Act in regard to assessments, the children's hearings themselves, reviews and appeals.
Local authorities are required to produce children's services plans every three years, rolled over annually. These plans must cover services in the 1995 Act as well as other listed services (Section 19). Such plans should therefore be considering inclusive educational and other opportunities for disabled children.
For further information, see:
Scotland's Children.The Children (Scotland) Act 1995, Regulations and Guidance. Vols 1-3. Scottish Office (1997).
The Scottish Executive website provides summary information on the children's hearing system.
(See Children (Scotland) Act pack produced by Children in Scotland for more information)
Scottish Executive, 'For Scotland's children: better integrated children's services', 2001
Disabled children across legislation
The definitions of disability are not the same across the DDA and the Children (Scotland) Act 1995. A disabled child under the DDA is highly likely to have special educational needs under education legislation but not necessarily. A minority of disabled children may not have special educational needs because:
1. their disability does not create any significantly greater difficulty in learning than the majority of their age group
2. their disability does not prevent nor hinder the children
3. from using educational facilities generally provided in their area.
A disabled child does not have to be assessed as having a special educational need nor be considered a disabled child under the Children (Scotland) Act 1995, in order to be protected from discrimination under the SEN and Disability Act 2001.
The SEN and Disability Act does not require education services to provide auxiliary aids and equipment. These would usually be provided following assessment - the staged approach to SEN (see above) and may be listed in the Record of Needs.
Scottish local authorities will shortly have at least three planning requirements, that require attention to the rights and services of disabled children: ie children's services plans every three years, annual statements of improvement objectives for education, and strategies for improving accessibility and communication.
The need to involve children in making decisions about their lives, and their rights to participate, have now been formally established in law and underlined in official guidance (Education (Disability Strategies and Pupils' Educational Records) Act 2002).
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