With the numbers of Scottish pupils identified as having an additional support need rising, it is more important than ever for schools to be aware of their obligations in relation to additional support needs.
The Scottish Government’s annual pupil census indicated that in 2022, around a third of all Scottish pupils had an identified additional support need. This figure was a record high. The figure was also over double the figure recorded in 2012. Factors such as the ongoing disruptive impact of the Covid-19 pandemic and the cost of living crisis are reported to be exacerbating existing additional support needs in our children and young people, as well as contributing to an increase in those experiencing mental health problems.
All children and young people require support to help them to learn. Additional support refers to any form of support which a child or young person requires which is additional, or different, to that usually provided. For example, a child may require enhanced one to one teacher support, additional assistance in relation to a particular area of learning, provision of quiet areas to work, speech and language assistance and so on.
These additional supports can be short term, or long term, and can arise for a number of different reasons – for example, as a result of health or disability, learning environment, family circumstances or social and emotional factors. Support can be required across all aspects of education, from early learning in nursery through to secondary education and preparing pupils for life after school.
The obligations placed on schools to meet the additional support needs of any child or young person differ slightly depending on whether the school is a local authority school or an independent school.
Local authorities are subject to the terms of the Education (Additional Support for Learning) (Scotland) Act 2004, which places duties on local authorities to meet the needs of their pupils, and provides parents with particular rights in relation to the education of their child.
In broad terms, the Act requires that local authorities identify, meet and keep under review the needs of their pupils. In particular, in certain situations involving pupils with complex and enduring additional support needs, the Act requires the use of a co-ordinated support plan which draws together support from education service agencies, as well as external agencies, and which must be kept under regular review.
The Act also provides parents with the right to make “placing requests” for their child to attend a special school, outwith mainstream education. Those requests can only be refused by local authorities on certain statutory grounds and, where a placing request is refused, the Act provides parents with a right to make claims (or “references”) to the Health and Education Chamber of the First Tier Tribunal for Scotland.
Independent schools are not subject to the terms of the 2004 Act (although parents can make a request to a local authority for a place at an independent school which makes provision for children with additional support needs, where the independent school is willing to admit the child). However, independent schools still have obligations to meet the needs of their pupils, particularly in terms of their contractual obligations to the pupil and their parents. Independent schools also have statutory obligations to devise strategies to increase the physical accessibility of both the school environment and the curriculum for pupils, and prospective pupils, with disabilities.
In addition, both local authority and independent schools are subject to the requirements of the Equality Act 2010, which prohibits unlawful discrimination in education. Of particular relevance are the disability discrimination provisions of the Act.
The Act defines a disability as a physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities. Depending on the circumstances, a child with additional support needs may meet the definition of a disabled person in terms of the Act.
The Act provides that schools must not discriminate in various circumstances, including:
Where a pupil with additional support needs meets the definition of a disabled person, then failing to identify and meet the needs of that pupil may amount to unlawful discrimination, including failure to make reasonable adjustments and discrimination arising from disability.
Careful consideration must be given, in any case involving a child or young person with additional support needs, to the extent to which adjustments are required to enable that child or young person to access, and benefit from, education. There requires to be careful analysis of the interests of the child or young person, the additional supports required and the extent to which those supports are reasonable and justified, given the resources available to the school and the potential impact of the support being provided. Often the advice of medical, or other, professionals is needed.
The legislation in this area is complex and multifaceted. Understandably, cases relating to a child’s education are often fraught with emotion and require to be handled with particular sensitivity. If you feel that your organisation would benefit from support, advice or training in this area, please contact Mandy Armstrong or your usual Anderson Strathern contact for more information.