Education (Additional Support for Learning) (Scotland) Act 2009

2009 asp 7

An Act of the Scottish Parliament to amend the law in respect of placing requests in relation to the school education of children and young persons having additional support needs and in respect of arrangements between education authorities in relation to such school education; to make minor provision in relation to additional support needs; to make further provision in relation to the practice and procedure of the Additional Support Needs Tribunals for Scotland; and for connected purposes.

EnactedThe Bill for this Act of the Scottish Parliament was passed by the Parliament on 20th May 2009 and received Royal Assent on 25th June 2009

Placing requests etc.¶

1 Placing requests¶

^I51 The Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) (“the 2004 Act”) is amended in accordance with this section.

^I52 In section 1(3)(a) (additional support needs), after “authority” substitute “ responsible for the school education of the child or young person, or in the case where there is no such authority, the education authority ”.

^I53 In section 7(1)(b) (other children and young persons), for “the” substitute “ an ”.

^I54 In section 10 (reviews of co-ordinated support plans)—

a in subsection (1), for “belonging to their area” substitute “ for whose school education they are responsible ”,

b after subsection (5) insert—

^I15 In section 11(8) (co-ordinated support plans: further provision), in paragraph (e) the words from “when” to the end of the paragraph are repealed.

^I56 In section 12 (duties to seek and take account of views, advice and information), after subsection (3) insert—

^I57 In section 18 (references to Tribunal in relation to co-ordinated support plan)—

a after paragraph (d) of subsection (3) insert—

b in paragraph (e) of subsection (3)—

i for “the”, where it occurs for the first time, substitute “ an ”,

ii after “request” substitute “ , other than a placing request mentioned in paragraph (da), ”,

iii for “the”, where it occurs for the second time, substitute “ a ”,

iv at the end add “ (including such a decision in respect of a child or young person for whose school education the authority refusing the request are not responsible) ”,

c after that paragraph insert—

d in subsection (4)—

i the words “, at the time the placing request is refused” are repealed,

ii after paragraph (b) insert—

e in subsection (7), for “(3)(e)” substitute “ (3)(da) or (e) ”.

^I58 In section 19 (powers of Tribunal in relation to reference)—

a after subsection (4) insert—

b in subsection (5)—

i in paragraph (b), at the end of sub-paragraph (i) substitute “ by such time as the Tribunal may require” ,

ii after paragraph (b) insert—

iii after paragraph (c) add—

d where—

i the decision was transferred from an appeal committee to the Tribunal by virtue of paragraph 6(4) and (5) of schedule 2 because the thing described in subsection (4)(ba) of that section occurred, and

ii the education authority have decided the child or young person does not require a co-ordinated support plan and that decision has not been referred to the Tribunal under subsection (1) of that section by the time within which such references are to be made,

refer the decision back to the appeal committee,

e where—

i the decision was transferred from an appeal committee to the Tribunal by virtue of paragraph 6(4) and (5) of schedule 2 because the things described in subsection (4)(c) of that section occurred, and

ii the Tribunal has confirmed the decision of the education authority that the child or young person does not require a co-ordinated support plan,

refer the decision back to the appeal committee,

f where—

i the decision was transferred from the sheriff to the Tribunal by virtue of paragraph 7(8) and (9) of schedule 2 because the thing described in subsection (4)(ba) of that section occurred, and

refer the decision back to the sheriff,

g where—

i the decision was transferred from the sheriff to the Tribunal by virtue of paragraph 7(8) and (9) of schedule 2 because the things described in subsection (4)(c) of that section occurred, and

ii the Tribunal has confirmed the decision of the education authority that the child or young person does not require a co-ordinated support plan,

refer the decision back to the sheriff.

5A Where the reference relates to a decision referred to in subsection (3)(f) of that section the Tribunal has the powers as mentioned in paragraphs (a) and (b) of subsection (5) of this section.

c in subsection (6), for the words “subsection (5)(c)” substitute “ paragraph (ba) or (c) of subsection (5) ”.

^I59 In schedule 2 (placing requests)—

a after paragraph 2(4) add—

b after paragraph 4(2) insert—

c in paragraph 6—

i in sub-paragraph (1), after “paragraph 5” substitute “ (including such a reference relating to a decision which has been referred back under section 19(5)(d) or (e)) ”,

ii in sub-paragraph (4), for the words from “there” to the end of the sub-paragraph substitute— “ the things mentioned in any of paragraphs (a), (b), (ba) and (c) of section 18(4) occur. ”,

d in paragraph 7—

i in sub-paragraph (1), after “paragraph 5” substitute “ (including such a reference relating to a decision which has been referred back under section 19(5)(d) or (e)) ”,

ii after that sub-paragraph insert—

iii in sub-paragraph (8), for the words from “there” to the end of the sub-paragraph substitute— “ the things mentioned in any of paragraphs (a), (b), (ba) and (c) of section 18(4) occur. ”,

iv after sub-paragraph (11), add—

^I62 Mediation services¶

In section 15(1) of the 2004 Act (mediation services)—

a for paragraph (a) substitute—

b for paragraph (b) substitute—

c in paragraph (c), the word “such” is repealed,

d after the word “of”, where it occurs for the fifth time, substitute “ any of ”,

e for the word “such”, where it occurs for the third time, substitute “ the ”.

^I73 Dispute resolution¶

In section 16(1) of the 2004 Act (dispute resolution), the following are repealed—

a in paragraph (a), the words “belonging to the area of the authority”,

b in paragraph (b), the words “belonging to that area”,

c in paragraph (c), the word “such” where it occurs for the first time.

^I84 Contributions not recoverable in respect of certain services¶

In section 23 of the Education (Scotland) Act 1980 (c. 44) (provision by education authority for education of pupils belonging to areas of other authorities), after subsection (2) insert—

^I95 Arrangements between education authorities¶

In section 29 of the 2004 Act (interpretation)—

a in subsection (3), after the word “Act” substitute “ and subject to subsection (3A) ”,

b after that subsection insert—

Additional support needs¶

^I106 Additional support¶

In section 1(3) of the 2004 Act (additional support needs)—

a in paragraph (a), after “provision”, where it occurs for the first time, substitute “ (whether or not educational provision) ”,

b in paragraph (b), for “educational provision” substitute “ provision (whether or not educational provision) ”.

^I117 Assessments and examination¶

After section 8 of the 2004 Act insert—

8A Assessments and examinations: further provision

1 A person specified in subsection (3) may request that the education authority arrange for a child or young person to whom section 4(1)(a) applies to undergo, for the purpose of considering the additional support needs of the child or young person, a process of assessment or examination.

2 The education authority must comply with the request unless it is unreasonable.

3 The persons referred to in subsection (1) are—

a where the request relates to a child, the child's parent,

b where the request relates to a young person, the young person or, where the authority are satisfied the young person lacks capacity to make the request, the young person's parent.

4 The education authority must, in accordance with the arrangements made by them under section 4(1)(b), take into account the results of any assessment or examination undertaken by virtue of this section.

5 A process of assessment or examination undertaken by virtue of this section is to be carried out by such person as the education authority consider appropriate.

6 In this section the reference to assessment or examination includes educational, psychological or medical assessment or examination.

^I128 Additional support needs etc.: specified children and young people¶

1 In section 1 (additional support needs) of the 2004 Act, after subsection (1) insert—

1A Without prejudice to the generality of subsection (1), a child or young person has additional support needs if the child or young person is looked after by a local authority (within the meaning of section 17(6) of the Children (Scotland) Act 1995 (c. 36)).

1B But where, in the course of identifying (in accordance with the arrangements made by them under section 6(1)(b)) the particular additional support needs of a child or young person who is looked after by a local authority (within the meaning of section 17(6) of the Children (Scotland) Act 1995 (c. 36)), an education authority form the view that the child or young person is, or is likely to be, able without the provision of additional support to benefit from school education provided to or to be provided for the child or young person, subsection (1A) ceases to apply.

2 In section 6 (children and young persons for whom education authority are responsible) after subsection (1) insert—

Pre-school children¶

^I139 Functions of education authority in relation to certain pre-school children with additional support needs¶

In section 5 of the 2004 Act (general functions of education authority in relation to additional support needs), for subsections (2) and (3) substitute—

Advocacy services¶

^I1410 Provision of advocacy service: Tribunal¶

After section 14 of the 2004 Act (supporters and advocacy), insert—

Mediation services¶

^I1511 Mediation services¶

In section 15(2) (independence of mediation services) of the 2004 Act, for the words “under this Act” substitute “ relating to education or any of their other functions ”.

Dispute resolution¶

^I212 Dispute resolution¶

In section 16(2) (dispute resolution) of the 2004 Act, before paragraph (a), insert—

Publication of information by education authority¶

^I1613 Provision of published information to certain persons¶

In section 26 of the 2004 Act—

a in subsection (1)—

i the word “and” immediately following paragraph (b) is omitted, and

ii after paragraph (c), insert

b after subsection (2), insert—

^I1714 Availability of published information¶

In section 26(1) of the 2004 Act (publication of information by education authority), after paragraph (a) insert—

^I1815 Publication of information on dispute resolution¶

In section 26(2) of the 2004 Act (publication of information by education authority), after paragraph (e) insert—

^I316 Power to specify additional sources of information¶

In section 26(2) of the 2004 Act (publication of information by education authority), after paragraph (h) insert

Provision of information by education authority on occurrence of certain events¶

^I1917 Provision of information by education authority on occurrence of certain events¶

In section 13 of the 2004 Act (provision of information etc. on occurrence of certain events), after subsection (4) insert—

Additional Support Needs Tribunals for Scotland¶

18 References to Tribunal in relation to co-ordinated support plan¶

^I241 In section 18 of the 2004 Act (references to Tribunal in relation to co-ordinated support plan)—

a after subsection (3)(d)(i) insert—

b after subsection (5) insert—

5A Where an education authority fail, in response to a request referred to in section 6(2)(b)—

a to inform under subsection (2)(a) of section 11 the persons mentioned in subsection (3) of that section of their proposal to establish whether a child or young person requires, or would require, a co-ordinated support plan by the time required by regulations made in pursuance of subsection (8) of that section, or

b to inform those persons of any decision not to comply with the request by the time required by such regulations,

that failure is to be treated for the purposes of this section as a decision of the authority that the child or young person does not require a co-ordinated support plan.

5B Where under subsection (2)(a) of section 11 the education authority have informed the persons mentioned in subsection (3) of that section of their proposal to establish whether the child or young person requires, or would require, a co-ordinated support plan, failure by the authority so to establish by the time required by regulations made in pursuance of subsection (8) of that section is to be treated for the purposes of this section as a decision of the authority that the child or young person does not require a co-ordinated support plan.

^I252 In section 19(3) of the 2004 Act (powers of Tribunal in relation to reference) for “(d)(ii)” substitute “ (d)(ia), (ii) ”.

^I2019 References to Tribunal in relation to duties under section 12(6) and 13¶

1 In section 18 of the 2004 Act—

a in the title, omit “in relation to co-ordinated support plan”, and

b in subsection (3), after paragraph (f) (as inserted by section 1(7)(c) of this Act), insert—

2 In section 19(3) of the 2004 Act, for “or (d)(ii) or (iii)”, substitute “ , (d)(ii) or (iii) or (g) ”.

^I420 Power to make rules in respect of Tribunal practice and procedure¶

In paragraph 11(2) of schedule 1 to the 2004 Act (Additional Support Needs Tribunals for Scotland)—

a after paragraph (k) insert—

b after paragraph (t) add—

^I2121 Power to monitor implementation of Tribunal decisions¶

In schedule 1 of the 2004 Act (Additional Support Needs Tribunals for Scotland) after paragraph 11, insert—

Availability of information on additional support needs¶

^I2222 Availability of information on additional support needs¶

After section 26 of the 2004 Act insert—

Collection of data on additional support needs¶

^I2323 Collection of data on additional support needs¶

After section 27 of the 2004 Act insert—

27A Collection of data on additional support needs

1 The Scottish Ministers must each year collect from each education authority information on—

a the number of children and young persons for whose school education the authority are responsible having additional support needs,

b the principal factors giving rise to the additional support needs of those children and young persons,

c the types of support provided to those children and young persons, and

d the cost of providing that support.

2 The Scottish Ministers must publish the information collected each year under subsection (1).

3 The Scottish Ministers may (after consulting such persons as they consider appropriate) by regulations specify the format in and method by which the information mentioned in subsection (1) is to be—

a provided to, and

b published by,

them.

General¶

24 Ancillary provision¶

1 The Scottish Ministers may by order make such transitional, transitory or saving provision as they consider necessary or expedient for the purposes of, or in consequence of, or for the purposes of giving full effect to, any provision of this Act.

2 An order under this section may modify any enactment, instrument or document.

25 Orders¶

1 Any power conferred by this Act on the Scottish Ministers to make an order—

a must be exercised by statutory instrument,

b may be exercised so as to make different provision for different purposes.

2 A statutory instrument containing an order under section 24 is, subject to subsection (3), subject to annulment in pursuance of a resolution of the Scottish Parliament.

3 An order containing provisions which add to, replace or omit any part of the text of an Act is not to be made unless a draft of the statutory instrument containing the order has been laid before, and approved by resolution of, the Parliament.

26 Short title and commencement¶

1 This Act may be cited as the Education (Additional Support for Learning) (Scotland) Act 2009.

2 This section and sections 24 and 25 come into force on Royal Assent.

3 The remaining provisions of this Act come into force on such day as the Scottish Ministers may by order appoint

Footnotes

I1
S. 1(5) in force at 2.4.2010 by S.S.I. 2010/129, art. 2(a)
I2
S. 12 in force at 2.4.2010 by S.S.I. 2010/129, art. 2(b)
I3
S. 16 in force at 2.4.2010 by S.S.I. 2010/129, art. 2(c)
I4
S. 20 in force at 2.4.2010 by S.S.I. 2010/129, art. 2(d)
F1
Words in s. 9 substituted (1.10.2010) by 2010 c. 15 Sch. 26 Pt. 2 para. 107 (as inserted by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 6)
I5
S. 1(1)-(4)(6)-(9) in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I6
S. 2 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I7
S. 3 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I8
S. 4 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I9
S. 5 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I10
S. 6 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I11
S. 7 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I12
S. 8 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I13
S. 9 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I14
S. 10 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I15
S. 11 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I16
S. 13 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I17
S. 14 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I18
S. 15 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I19
S. 17 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I20
S. 19 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I21
S. 21 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I22
S. 22 in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I23
S. 23 in force at 14.11.2010 by S.S.I. 2010/368, art. 2
I24
S. 18(1) in force at 14.11.2010 by S.S.I. 2010/277, art. 2
I25
S. 18(2) in force at 14.11.2010 by S.S.I. 2010/277, art. 2