Scottish Government

Introduction

Purpose of the Act

1. The Education (Additional Support for Learning) (Scotland) Act 2004 ("the Act") provides the legal framework which underpins the system for identifying and addressing the additional support needs of children and young people who face a barrier to learning. The Act aims to ensure that all children and young people are provided with the necessary support to help them work towards achieving their full potential. It also promotes collaborative working among all those supporting children and young people and sets out parents' rights within the system. The Act has been subsequently amended by the Education (Additional Support for Learning) (Scotland) Act 2009 ("the 2009 Act").

Purpose of the code

2. This code replaces the original code of practice published in 2005 in order to take account of the 2009 Act. It explains the duties on education authorities and other agencies to support children's and young people's learning. It provides guidance on the Act's provisions as well as on the supporting framework of secondary legislation. The code uses the term "the Act" to include, where appropriate, the secondary legislative provisions and includes features of good practice on how these can be applied. It also sets out arrangements for avoiding and resolving differences between families and authorities.

Status of the code

3. Education authorities and appropriate agencies, such as NHS Boards, are under a duty to have regard to the code when carrying out their functions under the Act. The code is designed to help them make effective decisions but it cannot be prescriptive about what is required in individual circumstances. Education authorities and appropriate agencies must ensure that their policies, practices and information and advice services take full account of the legal requirements of the Act. The code includes brief case studies and examples of good practice to illustrate some of the processes involved in applying the Act's main provisions. These do not offer definitive interpretations of the legislation since this is ultimately a matter for the courts.

4. The code is intended to explain the principles of the legislation and to illustrate how the law might operate in certain situations. It is important to an appropriate understanding of this framework that this code of practice is read as a whole. Individual chapters should not be taken out of the context of the whole code or read in isolation from each other and the Act and the related secondary legislation. There are some issues which the code cannot resolve and which must await the authoritative interpretation of the courts. The code is not intended to be a substitute for taking appropriate advice on the legal implications of particular situations.

Other legislation and policy

5. The guidance in this code should be read alongside other legislation and policy initiatives where appropriate. In particular, Curriculum for Excellence, Getting it right for every child ( GIRFEC) and Hall 4 ¹ have implications for education authorities' and other agencies' support for learning strategies. The guidance in the code is consistent with these developments. A summary of other relevant legislation and policy issues is provided at Annex A.

Who should read the Code?

6. Education authorities and other appropriate agencies should encourage and support their employees in gaining knowledge of the content of the code and understanding of its application in their day-to-day work. Parents and young people may wish to refer to the code for information and advice on exercising their rights. However, specific guidance is available for them from Enquire, the helpline funded by the Scottish Government which provides information and advice on additional support needs.

7. Examples of professionals across agencies who are under a duty to have regard to the Code, or others who may find it useful when carrying out duties under other legislation, include:

Multi-agency planners: policy officers, planners and service managers working in children's services planning networks across education, health, social care, further education and training.

Education: education directorate, head teachers, teachers, classroom assistants, educational psychologists, staff in schools and nursery provision, including partner providers for pre-school education.

Early years and childcare: Early years practitioners, early years workers in family centres, staff delivering out of school provision.

Health: health visitors, public health nurses, community child health teams, paediatricians, physiotherapists, occupational therapists, speech and language therapists, other allied health professionals, clinical psychologists, and medical practitioners in paediatrics, general practice and child and family psychiatry.

Social work: social workers, residential child care staff, support workers, adoption and foster care service staff and social workers with responsibility for child protection and looked after children.

Voluntary sector: staff working in the whole range of children's services.

Other agencies: professionals in other agencies who may be involved in integrated assessment teams, for example, childcare fieldworkers, youth workers, Children's Reporters, police, schools/community liaison team, community workers, staff working in careers services and in higher and further education.

Definitions

8. A young person has the same meaning as under the Education (Scotland) Act 1980 (referred to here as "the 1980 Act") which is a person over school age (generally over 16 years) who is not yet 18 years of age. Throughout the code the term young people is used instead of young persons, for ease of understanding.

9. "Education authority" under the 1980 Act is defined as a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994. In practical terms, the education authority and the local authority are the same entity. In general, the code refers to an education authority when considering a local authority's educational functions and to a local authority in respect of functions other than educational ones such as social work services.

10. The Act applies generally to pre-school provision, which is under the management of the education authority, and made for prescribed pre-school children. This provision also can include provision where an education authority have an arrangement with another provider; for example, where the authority have ² arranged for children to attend a private nursery under a partnership agreement. In certain circumstances, described in Chapter 3 below, the education authority have a duty to make provision for certain disabled children under the age of 3 years.

11. The meaning of disability, used in the Code, is as defined in the Disability Discrimination Act 1995 (c50), section 1(1). This states that "a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."

References in the Code

12. The code refers to the Act and its associated regulations. References to the Act are in the margin of each page, for example s1(1)(a) refers to Section 1, subsection 1(a). References to the titles of other legislation or policies are also in the margin of each page.

Further information

13. Further information on the code of practice is available from:

Tel: 0131 244 0946
Fax: 0131 244 0834
Email: ASLAct@scotland.gsi.gov.uk