GIRFEC – understanding the Code …

Much of the Children and Young People (Scotland) Act 2014 is due to come into force this autumn (subject to anything the Supreme Court may have to say in the case of Christian Institute & Ors v. Scottish Ministers). This has been characterised by some as GIRFEC (Getting It Right For Every Child) becoming law.

However, there are at least some parts of the GIRFEC framework which already carry (some) legal weight, by virtue of the Education (Additional Support for Learning) (Scotland) Act 2004.  That Act (in section 27) requires the Scottish Ministers to prepare a statutory Code of Practice (currently in its 2nd edition), to which education authorities and other appropriate agencies must have regard in carrying out their functions.

The Code has a lot to say about GIRFEC already (and it was published in 2010).  Here’s some of the highlights:

“Effective assessment, planning, action and review, consistent with the values and principles of Curriculum for Excellence, Getting it right for every child, the Early Years Framework and the provisions of this Act, involve:

  • taking a holistic view of children and young people and their circumstances, and what they need to grow and develop and achieve their potential;
  • seeking, taking account of and noting the views of children, parents and young people and involving them fully in the assessment process and in finding solutions;
  • ensuring that parents, children and young people, understand, and are asked to agree to, the aims of any assessment and the purposes of any action proposed ensuring that assessment is an ongoing, integrated process of gathering and evaluating information, planning, providing for, and reviewing, services for the individual;
  • adopting the least intrusive and most effective course of action affecting the lives of children, young people and families;
  • taking into account issues of diversity and equality and ensuring that outcomes do not discriminate against children, young people and their families. This includes not discriminating on grounds of race, disability, gender, sexual orientation, language, culture, religion or belief, and age.
  • working in partnership with, and building the capacity of, parents to secure education for their children and to promote their child‘s health and wellbeing, development and welfare.”

“Those with additional support needs comprise a broad group of children and young people whose needs require to be identified, understood and addressed to ensure that they benefit from school education. Education authorities need to play their part in ensuring that there is effective communication, collaboration and integrated assessment, planning, action and review when other agencies are involved.”

“Where lead professionals are working with children or young people with additional support needs then, in addition to the points set out below, they also have a responsibility to be familiar with the Act and, in particular, to ensure that parents and young people themselves are aware of their rights when they have concerns or disagreements about the provisions being made under the Act.”

“Where a range of individual assessments is required, the education authority should, in line with Getting it right for every child practice, seek to bring these within one assessment process to avoid duplication and placing the child or young person, and his/her family, under stress. This will involve ensuring that there is a lead professional co-ordinating the process when the assessments involve multi-professional staff. The ultimate aim will be to bring the assessments and their conclusions together into a single plan of action.”

“In all circumstances, planning should aim to ensure the effective co-ordination of support, including parents and the child or young person, so that it is clear what the intended learning outcomes are and what additional support is required to achieve these. Every opportunity should be taken to ensure that there is an integrated plan of action for a child or young person where more than one agency or service is involved and the aim should be to have one plan in line with the principles of Getting it right for every child.”

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When is school not at school?

Section 1 of the Standards in Scotland’s Schools etc. Act 2000 says that every child of school age (roughly: ages 5-16) has the right to “school education” by, or arranged by, an education authority.

However, not every child of school age receives education by way of education at a school or other establishment.

Some children are, of course, home educated.  But even where the education authority remain responsible for a child’s school education, the law requiring “school education” does not necessarily imply that the education will be provided in a school.

For example, in Section 3(2) of the 2000 Act, education authorities are obliged to secure improvement in school education provided in their schools; and in s.3(3), those duties “shall apply also in relation to school education which is provided in pursuance of any arrangements made, or entered into, by an education authority under (a) section 14 of the 1980 Act; or (b) section 35 of this Act.” that is education while excluded from school or unable to attend school due to ill-health; and nursery education provided by partnership nurseries.

Section 16 of the 2000 Act forbids corporal punishment given by, or on the authority of, a member of staff to “a pupil .. for whom school education is provided by an education authority (whether or not at a school);”

In the Explanatory Notes to the Standards in Scotland’s Schools etc. Act 2000, it is explained that “Section 16(1)(a) covers school education provided by an education authority, whether at school or elsewhere, for example at home or in hospital.”

Section 277 of the Mental Health (Care & Treatment) (Scotland) Act 2003, amends Section 14 of the Education (Scotland) Act 1980 to require education authorities to make arrangements for “school education” for children unable to attend school because they are subject to compulsory measures authorised by the 2003 Act or, in consequence of their mental disorder, by the Criminal Procedure (Scotland) 1995 Act.

The legal definitions of “pupil”, “primary education” and “secondary education”, found in the 1980 Act, do not necessarily require attendance at school or any other establishment.

This is of relevance in the context of new duties to be introduced by Section 21 of the Education (Scotland) Act 2016.  Section 21 introduces a new Section 2ZA (“Learning hours”) which requires education authorities and grant-aided schools to provide a minimum number of learning hours per annum for every pupil.

Section 2ZA(12) defines “learning hours” as “hours of school education of such type as may be prescribed”.  Much may depend on the precise form of the regulations which are to follow, but it is worth noting that this definition does not necessarily require all (or any) of these learning hours to take place at school.

Additional Support Needs

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Freeimages.com / Viviane Stonoga

This is the first post on this new blog, which takes a look at legal issues relating to additional support.  What better place to begin then, than Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004, as amended?

Specifically, we need to know what is meant by “additional support needs”? This is an important question as various rights and duties arise in law where a child or young person has additional support needs.

However, whether a child or young person has additional support needs is a question of fact, and does not rely on whether the education authority have formally assessed the child / YP or not.(cf. Parents of Child J v. Dumfries & Galloway Council 2015 SLT (Sh Ct) 253)

A child or young person is said to have additional support needs where “for whatever reason” they require additional support in order to benefit from school education (see below for more on the term “school education”).

The Code of Practice (“Supporting Children’s Learning”) suggests the following as examples of factors which may give rise to additional support needs:

  • having English as an additional language;
  • being a young carer;
  • being looked after by the local authority;
  • having a sensory impairment;
  • having a specific language impairment;
  • having other learning difficulties;
  • being bullied;
  • children with behavioural difficulties;
  • “gifted” or able pupils (e.g. RB v. The Highland Council 2007 SLT 844)

Since the 2009 Act, looked after children are presumed in law to have additional support needs, unless the authority have formally assessed them as having no such needs.  Where a looked after child has additional support needs, the authority must formally determine whether they require a Co-ordinated Support Plan.

It is worth reminding ourselves how broad the phrase “additional support needs” is. Also, note that a child or young person may have additional support needs due to a variety of factors.

“Additional support” is defined as provision which is additional or different to the provision normally made for pupils of the same age in local mainstream schools.

References to school education include, in particular, education which is “directed to the development of the personality, talents and mental and physical abilities of that child or young person to their fullest potential.”

That wording is taken directly from Article 29 of the UN Convention on the Rights of the Child, and underlines that the provision to be made for children with additional support needs should be made with a view to significant educational progression – including development in areas which would not traditionally be regarded as academic.