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.