Assessing children's additional support needs

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

No space for your child at your first choice school?

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.

What to do if your child is refused a place at a special school

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:

1. 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.
2. 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.
3. 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.
4. 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?
5. 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".
6. 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

Cheap/DIY Wills: A False Economy?

Wills are offered as a loss leader by many solicitors and will writers in the hope that they will eventually profit from being the ones to deal with your estate. As a result, this important service has been devalued to such an extent that many clients are reluctant to pay for something that they assume involves nothing more than ‘filling in the blanks’. If only it were so easy!  

In order to give you good advice, we have to ask you questions. Lots of questions. You might find some of them awkward or intrusive but, without this information, we can’t do our job properly. 

So, what do we need to know? Well, it may seem obvious but we need to get an idea of your financial position. Clients notoriously undervalue their estates by forgetting life assurance policies; death in service benefits; sums payable under pension policies; a potential inheritance from a relative etc. By asking the right questions, we can give you the right advice. Take some recent clients: their combined estates amounted to c.£750,000 but individually, the husband’s was worth £50k and the wife’s £700k. By removing just a few words (‘provided s/he survives me for 30 days’) from their existing wills, we potentially saved them £130,000 in Inheritance Tax.

Even if your estate is far more modest, we’ll still ask you questions. Things like, ‘do you have any children from previous relationships?’. You may have been thinking that the only way to balance the needs and expectations of both parties would be to leave everything to the surviving spouse on the understanding that they provide for your children in their will. We can talk you through other options.

And, the crux of it all – what do you want to achieve? Do you want to ensure a child doesn’t have access to their inheritance until they’re, say 18 or 21? To simply include a direction that funds shouldn’t be paid over until a child reaches a certain age will be completely ineffective, unless you include further trust provisions. 

Of course it’s tempting to go for the cheapest option, especially if you think your circumstances are pretty straightforward. In my experience, there are lots of things clients don’t even realise they need to think about and the examples above only scratch the surface.

What I’m really trying to say is, don’t mistake ‘cheap’ for ‘good value’. You should leave our office feeling confident you’ve made the best possible provision for the people you care about.

Sophie

Don't believe the hype!

There appear to be an increasing number of companies and solicitors promoting products or schemes that they claim guarantee to protect your home, or other assets, against the cost of care. Often these arrangements fail to do anything of the sort. 

They tend to be marketed very ‘slickly’ and information can be presented by qualified professionals, so it’s not surprising families feel they’re doing the right thing.

They’re branded in many ways but you might have heard them being referred to as ‘Asset Protection’ or ‘Family Protection’ Trusts. It’s not uncommon for set up fees to run to several thousand pounds.  

The past success of these schemes has relied very much on local authorities turning a blind eye but funding pressure means they’re now taking a much more aggressive stance.

If a local authority believes that someone has given assets away in order to avoid paying care fees, they may decide this amounts to a ‘deprivation of capital’. The current law is based on an intentions test. Proving intent isn’t easy but, if you enter into an arrangement that was sold to you on the basis of avoiding care costs or perhaps after you’ve had a diagnosis of a degenerative condition such as dementia, the local authority will find it much easier.

A really common misconception is ‘the 7 year rule’. Our clients often think as long as they’ve made a gift at least seven years prior to needing care that they’ll ‘get away with it’. Actually this rule applies to Inheritance Tax and not the means-testing rules for care fees. There is, in fact, no time limit as to how far back a local authority can look.

There might be lots of good reasons for you to establish some form of trust. You might even find an arrangement does mean you avoid having to pay for your care – but it’s by no means a certainty.

A good adviser should spend time with you explaining all the risks and possible consequences.

I would be extremely wary of any adviser that tells you any such scheme is guaranteed to work. I would even go so far as to say that such a claim is disingenuous…

Sophie

To treat or not to treat?

This week the Court of Protection gave an NHS Board in England permission to proceed with risky, but potentially life-saving, treatment against a patient’s wishes.  The patient, known as Mrs K, had schizophrenia and held a ‘delusional belief’ that she did not have cancer.  Evidence demonstrated she was unable to make an informed decision and her family were in agreement that she should have treatment.  However, the solicitor appointed to represent her ‘best interests’ felt the surgery was too risky.

This isn’t the first case to consider the treatment of an incapable patient against their will. In 2010, the Court gave permission to doctors to sedate a woman with learning disabilities and transfer her to hospital for surgery against her express and consistent wishes. The sedative would probably need to be concealed in a drink and she would be sedated for a period following surgery to ensure she didn’t become agitated and leave.

These cases involve complex ethical dilemmas and place massive emotional stress on families.  When is it acceptable to treat someone against their express wishes, if ever?  What would the person have wanted?  Which factors can legitimately be taken into account?  What weight should we give to the views of families?  On the one hand, we often hear stories of profoundly disabled people effectively being denied treatment or families finding DNR notices appearing on files with no discussion.  On the other, it’s crucial not to underestimate the potential psychological damage of being sedated and having invasive surgery against your wishes. 

Perhaps we should all think about the circumstances in which we would or wouldn’t want treatment and about the people we want to make decisions for us, if we are ever unable to make our own.   Living wills, advance statements and powers of attorney are all vital tools we can use to make our wishes clear and guide both our families and professionals about the decisions we want them to make.  These documents are at least as important as your will, if not more so, given they affect decisions while you are actually here!

Nicola

More information

1. The Court of Protection operates in England.  In Scotland, cases would be heard by the Court of Session. 

2. For anyone interested the 2010 case is DH NHS Foundation Trust v PS [2010] EWHC 1217 and the Mrs K is as yet unreported but there are more details here http://www.telegraph.co.uk/news/uknews/law-and-order/9609692/Woman-who-does-not-believe-she-has-cancer-can-undergo-operation.html

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