In terms of Section 6 of the Education (Additional Support for Learning) (Scotland) Act 2004, every education authority has to put in place appropriate arrangements so that they can determine which of their pupils have additional support needs. The law does not specify what form those arrangements might take, but the authority should publish its arrangements and these should be available on request.
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.
Assessment Requests
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.
Image credit: http://www.spazioasperger.it
Where a placing request has been made, the education authority have a legal duty to provide a place in the school specified by the parent(s), unless there is a ground for refusal (as set out in the legislation).
The most common reason for a placing request to be refused is that the specified school is oversubscribed. In such cases, spare places (once catchment area pupils have been accepted) are allocated in accordance with the Council's policy, including any places which are being “reserved” for pupils who may move into the area.
However, there is no one ground of refusal which directly deals with schools being full. Instead, there are a number of separate grounds each of which relate in some way to school capacity, but in a variety of ways. To add to the confusion, there is no legal definition on how to calculate the capacity of a school in the first place. Parents are left to grapple with national and local guidance and policy documents. Further, the case law on minimum class sizes at lower primary stages is conflicting.
Parents have a right of appeal against a refusal of a placing request. An appeal – called a “reference” must be lodged with the education appeal committee no later than 28 days after the refusal.
It is important to note that if a parent lodges an appeal against the refusal of a placing request, then they are not allowed to lodge another placing request appeal for the next 12 months – although there are some exceptions to this rule. Parents should therefore think carefully before lodging a placing request appeal.
The education appeal committee is a body of (usually) 3, (sometimes) 5 or (almost never) 7 people, which is constituted by the education authority whose decision is under appeal. The members are ordinarily a mix of locally elected councillors and parent members, drawn from parent councils at other schools in the area.
An appeal against a refusal of a placing request must be granted unless the education appeal committee, Sheriff or Tribunal is satisfied both that there is a ground for refusal and that it is appropriate for the placing request to be refused. Otherwise, the appeal must be allowed, and the pupil placed in the specified school.
On appeal, it is for the education authority to prove that the grounds for refusal relied upon actually exist. Therefore, the education authority should be in a position to demonstrate that the capacity of the school has been calculated correctly, for example. If they cannot do this, then the appeal should be successful.
The education appeal committee also has a discretion to allow an appeal, even where a ground for refusal does apply, if it is appropriate to do so in all the circumstances.
A decision in favour of the parents is final, but there is a further right of appeal for the parents to the Sheriff Court within 28 days of the appeal committee's decision.
Cairn Legal are able to assist with any stage of your appeal against a placing request refusal. Please contact us on 0141 303 8401 or info@cairnlegal.co.uk
NB - Where the child in question has additional support needs, there are slightly different rules which apply, which are not dealt with in this post.
Iain Nisbet, consultant solicitor at Cairn Legal, looks at the parents' legal rights where a child with additional support needs is refused a place at a special school or special unit.
It is this time of year when education authorities across Scotland send out formal decision letters about children's school places for the next academic year.
It is obviously disappointing when any placing request for the school of choice is turned down, but it can be especially distressing if the parent's preference is for a special school and this is refused in favour of the authority's preferred option - a mainstream school.
You will be all too aware that Scots law includes a "presumption of mainstreaming" - that all children will be educated in mainstream schools, other than in exceptional circumstances. However, there are a few things to remember which may be of assistance in negotiations (or even appeals) with the local authority:
- The guidance on the presumption of mainstreaming is to be reviewed. This is perhaps of less relevance to this year's cases, but it does indicate a commitment on the part of the Scottish Government to consider the issue afresh. If you have views on the matter, then contact your (new?) MSP, engage with the consultation, or check out ENABLE's "Included in the main?!" campaign.
- What is the current provision (or proposed provision) actually like? Where a child has been refused a place at a special school (or a special unit) on the grounds that placing them there would breach the presumption of mainstreaming, it is worth considering what the alternative is. A child who is physically within a mainstream school, but not participating or engaging in mainstream education - or actually excluded from "mainstream" activities may not be having an inclusive or "mainstream" experience.
- A special unit is a special school, too. In legal terms, the definition of a "special school" includes a special unit within a mainstream school as well. There are two implications of this. The first is that parents can make a placing request to a special unit within a mainstream school (you may have been told the opposite). The second is that placing a child in a special unit within a mainstream school does not satisfy the presumption of mainstreaming, either.
- There are exemptions to the presumption of mainstreaming. The presumption of mainstreaming does not apply if one of the three exceptions applies. So, it is worth considering a) would the education at the mainstream school be suitable to the child's ability or aptitude? b) would placing the child at the mainstream school be incompatible with providing efficient education to the other children at that school? and c) would placing the child at a mainstream school involve unreasonable levels of public expenditure for the education authority?
- There is a discretion - eventually. While the education authority have a duty to comply with the presumption of mainstreaming, if you appeal then the body hearing your appeal (whether it is the education appeal committee, the Additional Support Needs Tribunals, or the Sheriff Court) can effectively override the presumption of mainstreaming where they consider that to do so would be "appropriate in all the circumstances".
- Give it a try ... Often these questions arise at the transition point between nursery and primary, or primary and secondary education. Where a child attends the school proposed by the authority, it is possible to get a much better picture of how suitable the provision is for the child's additional support needs on a day-to-day basis. As with any new placement, the education authority should be keeping it under review to make sure it is working.
If you are considering an appeal against a refused placing request, it is important to do so quickly, as the deadline is only 28 days (2 months in the case of appeals to the Additional Support Needs Tribunals).
Cairn Legal have experience in
placing request appeals and can assist in the preparation for or
representation at placing request appeal hearings.
To find out more, or to book an appointment, please contact Cairn Legal on 0141 303 8401 or e-mail iain@cairnlegal.co.uk
