Educational planning: CSP vs. Child’s Plan

In August 2016, Part 5 of the Children and Young People (Scotland) Act 2014 will come into force, putting the “Child’s Plan” on a statutory footing.  In some quarters, this is seen as the cue to put away all those pesky Co-ordinated Support Plans (CSPs) in a drawer, lock it, and move on …

However, this is not the legal position.  In fact, the new law does not alter the status or effect of the CSP at all.  Article 3(2)(b)(ii) of the Child’s Plan (Scotland) Order 2016 require a Child’s Plan to record all the information set out in a CSP which is “a record of any wellbeing needs which the child has and any action taken or to be taken to address those needs” – or, in other words, most of it. Article 7(9)(b) effectively ties the review cycle of a Child’s Plan to that of the CSP.

And despite these (and other) legislative developments within this time, the CSP remains an important part of the education policy. The Scottish Government recently listed their
‘continued commitment’ to the additional support for learning legislative framework as the key commitment in the field of education, in their Draft Delivery Plan (2016–2020) for the UN Convention on the Rights of Persons with Disabilities.

From a dispute resolution point of view, for all its faults, the system of mediation, independent adjudication and the Additional Support Needs Tribunals for Scotland provide a more robust system than the system of complaints set up under the Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016.

Therefore, it would seem that there is life in the old CSP yet…

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Reasonable adjustments for disabled pupils

Some pupils with additional support needs are also disabled and, as such, enjoy the additional protections of the Equality Act 2010.

One of these additional protections is the reasonable adjustments duty.

The duty to make reasonable adjustments includes three requirements:

  1. adjustments to avoid substantial disadvantage arising from a provision, criterion or practice (“PCP”);
  2. adjustments to avoid substantial disadvantage from the physical features of a building;
  3. adjustments to avoid substantial disadvantage by providing an auxiliary aid (or auxiliary service).

The second requirement does not apply to schools. In Scotland, the Education (Disability Strategies and Pupils Educational Records) (Scotland) Act 2002 apply instead. This Act requires responsible bodies for schools to draft an accessibility strategy, which sets out planned improvements to the physical accessibility of the school (among other things). Cf. “Planning improvements for disabled pupils’ access to education: Guidance for education authorities, independent and grant-aided schools” (Scottish Government Guidance).

A failure to comply with a reasonable adjustments duty in relation to any disabled person amounts to unlawful discrimination.

The reasonable adjustments duty for schools applies in relation to:

  1. deciding who is admitted to the school; and
  2. providing education or access to a “benefit, facility or service” (this might include school lunches, uniform policy, playtimes, out of school trips, after-school clubs, assemblies, discipline etc. etc.).

In deciding whether an adjustment would be reasonable or not, you should read and consider the Technical Guidance for schools in Scotland, which gives a list of factors to bear in mind together with several useful examples.

Without intending to be exhaustive, and in no particular order, the following are some of the factors that are likely to be taken into account when considering what adjustments it is reasonable for a school to have to make:

  • The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;
  • The extent to which support will be provided to the pupil under the Education (Additional Support for Learning) (Scotland) Act 2004, as amended;
  • The resources of the school and the availability of financial or other assistance;
  • The financial and other costs of making the adjustment;
  • The practicability of the adjustment;
  • The effect of the disability on the individual;
  • Health and safety requirements;
  • The need to maintain academic, musical, sporting and other standards;
  • The interests of other pupils and prospective pupils.

Technical Guidance (6.29)

Example:
A pupil with learning difficulties is excluded for repeatedly getting up from his seat during lessons and disrupting other pupils. It is the school’s policy that repeated disruptive behaviour is punished by exclusion. The school is under a duty to make reasonable adjustments to its policy, which might mean disregarding some of the disruptive behaviour and working with the pupil to find a way in which to help him to remain in his seat during lessons.
Technical Guidance (4.12)

Example:
A visually impaired child requires printed handouts to be prepared in 24pt font or larger. This can easily be accommodated by ensuring that fonts are reset to this size prior to any documentation being printed.
Technical Guidance (6.45)

A school’s duty to make reasonable adjustments is often referred to as an “anticipatory duty” and it is owed to disabled pupils generally. Therefore, schools must plan ahead and consider in advance what disabled pupils may require, rather than simply responding to difficulties as they arise.