Powers and Duties
The Education (Additional Support for Learning) (Scotland) Act 2004 imposes duties and confers powers upon education authorities. Generally speaking (see below for exceptions) the education authority has binding duties to provide additional support for children and young people who are in their own schools and free nursery provision (or placed by them in other provision). They have discretionary powers to provide additional support for children below the age of free nursery provision (roughly 0-3 years); pupils educated by parental choice in the independent schools sector; or children educated at home by their parents.
There are two levels of duties imposed on education authorities. The first is for children and young people with additional support needs who do not have a CSP. The second, and more onerous, is for those with additional support needs who also have a CSP.
General Duties
The education authority have a general duty to take account of the needs of children and young people with additional support needs when exercising any of their education functions. For example, when taking decisions about the numbers and types of schools required in any given area, the education authority should consider whether the schools planned will be able to meet the needs of pupils with ASN.
Very Young Children
By very young children, we mean children who are still too young to be entitled to free nursery education from the education authority. This equates to roughly 0-3 years old, but can be worked out for any given child by referring to the the Provision of School Education for Children under School Age (Prescribed Children) (Scotland) Order 2002.
Generally speaking, the education authority has merely a discretionary power to provide additional support to such children where they have ASN. However, there is an exception to that general rule. An education authority has a duty provide appropriate additional support to very young children if:
- the child's needs have been brought to the attention of the authority by the Health Board;
- the child has been assessed as having additional support needs by the authority; and
- those additional support needs arise from a disability (as defined by Section 1 of the Disability Discrimination Act 1995).
Duties: Additional Support Needs
Where a child or young person has additional support needs, the education authority responsible for their education must make "adequate and efficient provision" of additional support for that child or young person. The authority must also keep under consideration that additional support and whether or not it is adequate.
However, this duty does not go so far as requiring the education authority to do something which it does not have legal powers to do (e.g. to take on the functions of the Health Board). Nor does it require the authority to do anything which would incur "unreasonable public expenditure". This effectively puts a financial cap on provision for additional support needs.
Duties: Co-ordinated Support Plans
Where a child or young person has a co-ordinated support plan, the education authority has two duties. The first is to provide additional support to the child or young person in accordance with the contents of the plan. This means that the CSP is legally binding upon the education authority (in a way which the Record of Needs never was). It is important to note that this duty is not subject to any exception related to levels of public expenditure.
However, the CSP is not binding on the other agencies (such as the Health Board) who may be involved. Therefore, the authority has a subsidiary duty to try and make sure that additional support is also provided by the other relevant agencies in accordance with the contents of the plan.
To assist with that role, the authority has powers to request help from other agencies, who must comply with such requests within time limits set out in the Additional Support for Learning (Appropriate Agency Request Period and Exceptions) (Scotland) Regulations 2005. The power to request help is subject to a number of exceptions which may render it of little practical use.
The next section is all about Advocacy and Support.