The question of whether a child has additional support needs or not can be an important one. The "status" of additional support needs means that the 2004 Act applies to the child, together with all of the rights and duties that it contains. If a child does not have additional support needs, then the Act is - largely - irrelevant for them.
The process of determining whether an individual child has additional support needs begins with one of two things:
- a written request by a parent or young person; or
- the education authority acting on the basis of their own observations (e.g. a classroom assistant may notices a child having difficulty maintaining their concentration).
Following either of the above, the education authority must formally determine whether the child or young person in question has additional support needs - unless it would unreasonable to do so.
However, it is important to note that a child has additional support needs where they require additional support in order to benefit from school education. That status in law is not dependent on the education authority having assessed the child. The duties to make "adequate and efficient" provision for a child's additional support needs do not wait for the assessment to take place if the authority is late in reaching the formal process.
Either as part of a process of determining whether a child has additional support needs, or (since 2010) separately, a parent or young person may make an "assessment request".
An assessment request is a written request that the authority carry out a particular type of assessment or examination. This might be an educational, medical or psychological assessment or examination, or it might be something more specific such as a social work assessment, a speech & language therapy assessment, or an assessment for a specific medical condition like dyslexia, Asperger's syndrome or ADHD. In line with the new GIRFEC legislation (Children and Young People (Scotland) Act 2014), parents may now request a wellbeing assessment.
The education authority must comply with an assessment request unless the request is unreasonable. The Code of Practice suggests that a request might be unreasonable if:
- it was not in the child's best interests;
- it was not relevant to the child's circumstances;
- it would duplicate assessments already carried out, etc.
It is important to remember that the right to make an assessment request does not include the right to specify who should carry out the assessment or examination. That right is reserved to the education authority.
In the event that a dispute arises about whether a child has additional support needs or not, or about the nature of those needs, or about whether an assessment request should be complied with, or about how that assessment should be conducted, then the parent or young person has a right to refer that dispute to an independent adjudicator (nominated by the Scottish Ministers) for resolution.
Cairn Legal are able to assist with requests for assessment or references to independent adjudication. For more information, please contact us.
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