Additional Support for Learning in Scotland

Submission to Scottish Parliament Education, Children and Young People Committee

December 2023

Key points:

  • The presumption of mainstreaming was and still is a positive step towards delivering on international human rights treaty obligations, and a step towards creating a more inclusive education system, community and nation.
  • Although there has been some investment in resourcing additional support, this has not been sufficient to meet the increased need. Training and system redesign are required to ensure inclusive education systems are created that work for all children.
  • Disabled children and young people and children with additional support needs continue to be unfairly subjected to practices that impact negatively on their education, as well as their personal and social development. Because their needs are not being met, they are not always able to access a full curriculum, experiencing part time timetabling and informal school exclusion practices.
  • Co-ordinated Support Plans (CSPs) are a critical part of the system, to enable children to access the support they require to have their rights fulfilled – however these are significantly underutilised, not all children entitled to a CSP have one and the criteria is too narrow for them to be effective.
  • Parents and carers of children with additional support needs require access to more information to support them to understand their children’s rights, and to ensure that entitlements such as CSPs are in place.
  • For those children with additional support needs who do not have a CSP, there is little redress available if they think they are not getting the support they want and need. The independent adjudication process needs to be strengthened, including introducing the right of appeal.

Implementation of the presumption of mainstreaming

The presumption of mainstreaming which was introduced in s15 of the Standards in Scotland’s Schools Act 2000, was an important step in bringing Scotland’s education system into line with the UN Convention of the Rights of the Child (UNCRC). Both the UNCRC (in Article 23) and the UN Convention on the Rights of People with Disabilities (UNCRPD – in Article 24), together with Sustainable Development Goal 4, are clear that disabled children[1] have the right to a mainstream, inclusive education.

In the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) (“the ASL Act”), Scotland chose to extend rights to support to children with other support needs, where:

“for whatever reason, the child or young person is, or is likely to be, unable without the provision of additional support to benefit from school education provided or to be provided for the child or young person.”[2]

This has been interpreted broadly to the benefit of many children and young people.

In 2006, the UN Committee on the Rights of the Child CRC, produced a General Comment on the rights of children with disabilities. In this, they adopted Article 1 (2) of the UNCRPD as their definition of disability. This states:

“Persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

This definition is a broad one and complements the definition of a disability in section 6 of the Equality Act 2010 which is

  • “A person (P) has a disability if –

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”

For the purposes of the Equality Act, it is not necessary for there to be a diagnosis nor does the impairment have to be the result of an illness.

Discrimination occurs where a disabled student is treated unfavourably, because of something “arising in consequence” of the student’s disability unless that treatment is a “proportionate means of achieving a legitimate aim”.[3]

The Equality Act provides protection from discrimination for disabled people in a range of circumstances including education where schools have a duty to make reasonable adjustments for disabled pupils. This means taking reasonable steps to ensure that a provision, criterion or practice does not place a disabled student at a substantial disadvantage and to take reasonable steps to provide the auxiliary aid or service needed to mitigate a substantial disadvantage. These duties are designed to correspond with duties under the Special Educational Needs (SEN) framework.

The Committee on the Rights of People with Disabilities (CRPD), in General Comment 4 on the right to an inclusive education, provide a lengthy but non-exhaustive list of the barriers that disabled children face in accessing inclusive education. These emphasise the impact of persistent discrimination against disabled people and the importance of understanding a human rights model of disability “according to which barriers within the community and society, rather than personal impairments, exclude people with disabilities”. These barriers include:

  • Lack of knowledge about the nature and advantages of inclusive and quality education and diversity … in learning for all; …
  • Lack of appropriate responses to support requirements, leading to misplaced fears and stereotypes that inclusion will cause a deterioration in the quality of education or otherwise have a negative impact on others;…
  • Lack of political will, technical knowledge and capacity in implementing the right to inclusive education, including insufficient education of all teaching staff;
  • Inappropriate and inadequate funding mechanisms to provide incentives and reasonable accommodations for the inclusion of students with disabilities…;
  • Lack of legal remedies and mechanisms to claim redress for violations.”[4]

UNCRPD General Comment 4 also highlights important differences between exclusion, segregation, integration and inclusion:

Exclusion occurs when students are directly or indirectly prevented from or denied access to education in any form.

Segregation occurs when the education of students with disabilities is provided in separate environments designed or used to respond to a particular impairment or to various impairments, in isolation from students without disabilities.

Integration is the process of placing persons with disabilities in existing mainstream educational institutions with the understanding that they can adjust to the standardized requirements of such institutions.

Inclusion involves a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and the environment that best corresponds to their requirements and preferences.

Placing students with disabilities within mainstream classes without accompanying structural changes to, for example, organization, curriculum and teaching and learning strategies, does not constitute inclusion. Furthermore, integration does not automatically guarantee the transition from segregation to inclusion.

Our view that what many disabled children (and those with other support needs) in Scotland experience is integration, at best, not inclusion and that this is the cause of many of the concerns which are being raised about the presumption of mainstreaming. Anecdotal information suggests that there has been a reduction in the number of classroom support assistants and specialist teachers to support inclusion, however changes to the way information is collected and recorded makes it difficult to establish the facts in relation to this.

A lack of effective support, and insufficient progress in implementing the structural changes outlined in UNCRPD General Comment 4, results in an education system which fails to realise all children’s right to an education which develops their “personality, talents and mental and physical abilities to their fullest extent” (UNCRC Article 29(1)(a)). It has an often devastating impact on the child’s wellbeing, including their physical and mental health (UNCRC Article 24 and UNCRPD Article 25). It inevitably impacts on their parents and on their interactions at school with peers and staff. In some cases, it manifests as distressed behaviour in school and/or at home.

The drafters of the Standards in Scotland’s Schools etc Act 2000 expected the presumption of mainstream to, at times, be more expensive than special school provision. The Act allows, in s15(3)(c), education authorities to refuse a request for mainstream education where it “would result in unreasonable public expenditure being incurred” – but the Act states this circumstance should only be applied exceptionally. The expectation was that the presumption of mainstream would require, at times, substantial additional support.

The ASL Act makes provision for additional support through Coordinated Support Plans if –

  1. an education authority are responsible for the school education of the child or young person,
  2. the child or young person has additional support needs arising from—
  3. one or more complex factors, or
  4. multiple factors,
  5. those needs are likely to continue for more than a year, and
  6. those needs require significant additional support to be provided—
    1. by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or
    1. by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.”[5]

A recent ruling by the Upper Tribunal for Scotland noted in paragraph 27:

[T]he wording of section 2(1)(d) is: “those needs require significant additional support to be provided” (bold added). Section 2(1)(d) does not stop at support currently being provided… [b]ut an approach that analyses only support that has in fact been provided, rather than what needs “require”, may in some cases be too narrow.”[6]

In evidence to the Education and Skills Committee on the 27th of February 2019 Professor Sheila Riddell made the point that according to the ASL Act, the child has to be getting significant input from agencies other than education in order to have a CSP. She further explained that education authorities report that they cannot get input from social work and health. “Children who need additional support are therefore not getting additional support and they do not qualify for a CSP. As services from other agencies have been taken out of school, children are being deemed not to qualify for a statutory support plan, so the numbers are going down.”[7]

It is imperative that to achieve the presumption of mainstreaming and inclusion for children with additional support needs that they receive the support they require rather than the support that resources can stretch to.

Special schools

Decisions about whether a child should be educated outwith mainstream should be made on a best interests basis, taking account of the child’s views.

We accept that there remain situations where placement in a special school, in a unit in a mainstream school or through mixed-provision, on a temporarily or long term basis, may be necessary. For example, this may be because specialist services cannot be provided in a mainstream school.

However, the long-term policy aim should be towards the inclusion of all children in mainstream education. The CRPD’s General Comment 4, published in 2016, emphasises that States Parties:

“have a specific and continuing obligation to move as expeditiously and effectively as possible towards full realisation of Article 24. This is not compatible with sustaining two systems of education: a mainstream education system and a special/segregated education system”.[8]

Where children are best placed in mixed-provision, it is important that this does not restrict their access to an education that develops their personality, talents and mental and physical abilities to their fullest potential as outlined in Article 29. We continue to have families contact our enquiries line outlining the restriction to subjects which children in mixed-provision experience against their wishes.

Children outwith school

Unfortunately, we continue to hear that other groups of children, particularly those not attending mainstream schools, are still not receiving a broad education as outlined by Article 29 and indeed as is expected under Curriculum for Excellence.

Earlier this year we conducted visits to all the secure care units in Scotland. A common theme from young people was that although they did receive education (indeed some commented they received more education than they had previously) what was provided was not, to use the UNCRC’s phrasing, directed to “their personality, talents and mental and physical abilities to their fullest extent.

Children with long term health conditions requiring frequent hospital treatments meet the definition of disabled in the UNCRPD. We heard from children with long term health conditions or other disabilities, supported by Children’s Health Scotland, who had been out of school for long periods of time. Many reported that they had received little or no education provision and generally provision for interrupted learners seems to focus on English and Maths and often only for an hour or two a day. The young people we spoke to were keen to learn and frustrated by the lack of provision.

For those children with long term health conditions that result in frequent or lengthy hospital stays, Children’s Health Scotland’s children in hospital survey 2018-19 reported that just over a third of children admitted receive education in accordance with Scottish Government guidance. For children admitted to hospital in another local authority to where they live and go to school, 55% do not receive support from teachers. 75% of children admitted to adult wards do not receive any access to education.[9]

The Mental Welfare Commission for Scotland is responsible for reviewing the inpatient care for children admitted due to their mental health. The inspection reports for the four inpatient facilities in Scotland for children and young people all note that school provides an important structure for their days and note that they all have access to education. It was reported that in one unit access to a wide school curriculum was limited, though it had increased slightly following an appeal by parents to their local educational authority. In another unit the young people raised concerns about their education being affected by only having access to a part-time timetable. For those children admitted to adult wards, in only 10% of admissions was education provided, however it was noted that 50% of admissions were for less than a week[10].

Exclusions

One of the key expectations of inclusive education in Scotland is that “All children and young people should receive a full-time education including flexible approaches to meet their needs.”

A child or young person should only be prevented from attending their school through use of formal exclusion, which ensures that rights and duties are applied. Legally, although not good practice, it is also possible for the parents or young person to agree with the school that the pupil should not attend school. The exclusions guidance also recognises that flexible packages may be a suitable approach for some pupils. However, this is qualified. It should be following an appropriate assessment and still ensure that children and young people attend school or another learning environment for the recommended number of hours. There is allowance for a reduction in hours where there is agreement with the parent and child that this best meets the needs of the child, when it is for a limited period and carefully recorded and monitored[11].

National statistics demonstrate that disabled pupils and looked after pupils are disproportionately subject to exclusion: both formal and informal exclusions[12]. There are no current statistics on the prolonged use of part-time timetables as another form of limiting children and young people’s access to the recommended 25 hours in primary schools and 27.5 hours for secondary schools.

As the 2018 report “Not included, not engaged, not involved: A report on the experiences of autistic children missing school.” notes, informal exclusions are a particular problem:

“As well as through formal exclusions from school, instances have been reported of autistic children being excluded from their education in other ways. This includes the use of part-time timetables, children missing school due to anxiety or other health needs, and a lack of suitable school placement or support meaning a child is unable to be in school. There are also concerns that many families are being asked to pick up their child from school early on a regular basis, without the child having been formally excluded – a practice which is unlawful.”[13]

Care experienced young people are eight times more likely to be excluded than their non-care peers[14]. The Promise commits Scotland to ending the exclusion of looked after children: “The formal and informal exclusion of care experienced children from education will end.” Plan 21-24 states that this will happen by 31 March 2024 – less than a year away.

For the majority of disabled or care experienced children and young people who are excluded from school, it comes as the result of behaviours arising from unmet need or a lack of reasonable adjustments. The Additional Support Needs Tribunal for Scotland (now the First-Tier Tribunal for Scotland (Health and Education Chamber)) found in the case of McGibbon vs Glasgow City Council that

“Many disabled or Autistic Spectrum Disorder (ASD) pupils will exhibit behaviour which is as a result of their condition. Reasonable adjustment is required to meet the needs of that pupil. If no such adjustment is reasonably made, the application of the policy to that pupil in the same manner as application to a non-disabled pupil, without differentiation, is discriminatory.”[15]

During the hearing the tribunal heard evidence from Dr Gillean McCluskey, an expert on school exclusions. Dr McCluskey noted in her evidence that exclusions are ineffective and potentially makes matters worse for the student, their family and their wider school community.

Regulation 4 of the Schools General (Scotland) Regulations 1975 states that

“an education authority shall not exclude a pupil unless the authority consider that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and disciple in the school or the educational well-being of pupils there.”[16]

This regulation is the most common ground for a school exclusion.

In relation to the inquiry question: what impact, if any, does the presumption of mainstreaming have on the education of pupils who do not require additional support? Behaviour resulting from unmet need and its impact on pupils with additional support needs, teachers and other pupils is currently being widely debated in Scotland. A human rights interpretation of the debate should be as a failure to meet the ambition of the Standards in Scotland’s Schools etc Act 2000 and realise the rights of all children in the class to an inclusive educational environment, free from discrimination.

Care experienced children and young people

Article 20 of the UNCRC places additional obligations on the state to provide special protection and assistance to children who are placed in care and the 2021 Day of General Discussion on Children’s Rights and Alternative Care Outcome Report emphasised the importance of ensuring access to and continuity of education when children are placed in alternative care.[17]

The Education (Additional Support for Learning) (Scotland) Act 2004, amended in 2009, deems all looked after children to have additional support needs, unless assessed otherwise. While there have been improvements in the educational attainment of care experienced children and young people, there continues to be disparity in their educational outcomes in comparison with their non-care experienced peers. 31.7% of looked after young people leave school in S4 or earlier, compared with 12.4% of all school leavers. Leaving school early usually means leaving with less qualifications; only 46.1% of care experienced young people leave with one or more qualifications at SCQF level 5 or better, while 86.4% of all school leavers achieve this level. In 2021/22, there was a 33.2% gap between the proportion of care experienced young people going on to Higher Education as an initial destination compared to all school leavers.[18]

Freedom of information requests, submitted by the Govan Law Centre in 2015, revealed of the 12,533 looked after children with additional support needs only 6,374 had been assessed for a CSP. Of those assessed, only 2.9% were deemed to require a CSP[19]. Information from CELCIS suggests authorities are often not assessing looked after children for their suitability for a CSP, sometimes due to not understanding that they have a right to this under legislation and other times, perhaps more concerningly, that they don’t have the resources available to meet the needs that a coordinated support plan would identify. Who Cares? Scotland report that young people say that even when additional support needs are identified, this information does not always follow them with the move from one educational setting to another, resulting in a lack of support in the new setting.

The Promise highlighted the lifelong cost that care can have on children and young people and made a series of recommendations for education.

  • Care experienced children and young people will receive all they need to thrive at school. Schools will know and cherish their care experienced pupils.
  • We will support our care experienced children and young people to remain in school and not be excluded.
  • School improvement plans will value and recognise the needs of their care experienced pupils with robust tracking of attendance and attainment so that support can be given early.
  • Schools will support and ensure care experienced young people go on to genuinely positive destinations, such as Higher/ Further education or employment.
  • Care experienced young people will be actively participating in all subjects and extra-curricular activities in schools.
  • Every child who is ‘in care’ in Scotland will have access to intensive support that ensures their educational and health needs are fully met.[20]

Clearly much still needs to be done to ensure care experienced young people receive the additional support for learning that they need. The presumption of mainstreaming needs to include the expectation that mainstream education meets the needs of all students. The Children in Scotland report Pupil Support Staff Engagement Project notes that having the right support improves children and young people’s experiences of school. The children involved also said that they are more likely to feel welcome, respected and more independent as a result of receiving the right support.[21]

Young Carers

The Carers Census 2022 -23 reported that young carers made up 15% of the individual carers identified.[22] ‘Young Carers: Review of research and data’ reported that the most accurate estimate of the numbers of young carers was 7% of young people[23]. The Carers (Scotland) Act 2016 introduced the right to a young carers statement to identify any support, including in education, a young carer may need as well as who is responsible for providing that support. As at the 2021-22 Carers Census there were 2,360 young carers recorded as having a young carer statement in place or being put in place, representing around 2% of young people.[24]

Young carers are recognised as needing additional support within the ASL Act. ‘Young carers: review of research and data’ reports that caring may adversely affect a young person’s education, including school attendance, attainment and being the target of bullying.[25] Despite this acknowledgement there are no statistics relating to the additional support needs of young carers in the 2022 Summary Statistics for Schools in Scotland.[26] Edinburgh Young Carers’ Supporting young carers in schools: good practice guide has been co-produced with young people and provides a structure to ensuring young carers have their needs met within education. Within the guide the call for a blended learning approach to support young carers learning from home if appropriate and for enhanced transitions between primary, secondary and further education.[27] This echoes calls made by other young people supported by My Rights, My Say and other third sector organisations to not lose the learning from Covid which showed the benefit to some young people of agile learning.

Young Carers have raised concerns with our office about the failure to put in place young carers statement, statements that do not properly identify or distinguish their needs and the lack of appropriate support leading to an escalation of need. They felt that a lot of teachers didn’t really understand what a young carer does and how it impacts on their day-to-day life.

Assessment and Qualifications

Academic accreditation affects a young person’s right to protection of their reputation as it involves the public recognition of the individual’s qualities and merits. The failure to protect this right through the provision of a fair reflection of academic progress directly impacts future prospects.[28]

School leavers in 2021/22 with an Additional Support Need (ASN) were less likely to be in a positive initial destination (93.4 per cent) than leavers without a recorded ASN (97.3 per cent). Leavers in 2021/22 who were declared or assessed disabled were also less likely to be in a positive initial destination (92.3 per cent) than leavers who were not (95.8 per cent). 41.5% of Leavers with an ASN achieved SCQF 6 or 7 compared to 73.3% of leavers without an ASN.[29]

For the presumption of mainstreaming and inclusion of children and young people with additional support needs to be successful and overcome the barriers identified there must be alternative systems for assessing, recognising and celebrating the success of all learners. These needs to include alternative methods of assessment for those sitting mainstream qualifications and also alternate methods of supporting the achievements of students outwith traditional academia, such as the Success Looks Different Awards created by the Inclusion Ambassadors[30].

Senior Phase, Further and Higher Education

Disabled children have the same right to progress in education as their peers. All children have a right to continue in secondary education until the end of S6, if they wish, and beyond the age of 18. This was confirmed in M v Fife[31]. We are therefore concerned that we continue to hear of instances where disabled children and those with other support needs (including care experience) are encouraged to leave school at the end of S4, or earlier in some cases.[32]

Further and Higher Education must form part of transition planning for disabled children. This requires input from a range of child and adult services, depending on the level of support needed by the child. It will involve education authorities, providers of further and higher education and where appropriate child and adult social work, as well as the active participation of the young person.

There are currently widely acknowledged gaps in the legislative framework, including the Schools (Additional Support for Learning) (Scotland) Act 2004, around transitions. These have been highlighted during the consideration of Pam Duncan-Glancy MSP’s members bill on the issue, on which we submitted Stage 1 evidence in 2020[33].

Impact of COVID-19 on additional support for learning 

Our office recognises the wealth of information already provided to the Committee by ourselves, the Scottish Youth Parliament (SYP), Youth Scotland, Young Scot and others in relation to the impact of COVID-19 on those with additional support needs. This includes reporting that young people who needed extra help in school, were also affected more than others by the pandemic, and continue to be severely disadvantaged.

A joint briefing by CYPCS and SYP heard from the families of young people with additional support needs being ‘side-lined’, their usual support suspended, struggling with online learning designed without considering their individual needs, nor the needs of those who cannot use online learning at all due to their disability or lack of access. One parent reported how their child, who normally did well in their chosen subjects, had been affected by the lack of support for their hearing impairment, but had no way to prove this.[34] The Family Fund surveyed families twice during lockdown and 89% said that their disabled or seriously ill child’s behaviour and emotions were being negatively affected. A similar majority (82%) reported a negative effect on their mental health. The Alliance Scotland also said people with disabilities that they work with have had issues with technology, including accessing school and schoolwork.

Scottish Government Short-Life Working Group on Co-ordinated Support Plans noted that the pandemic had had an additional impact on both children and young people with additional support needs and the plans needed to support them[35]. Home learning affected some more than others, particularly in relation to the level of support received. For other young people home learning was a positive experience giving young people more freedom to take breaks when they needed, being able to manage their environment to meet their needs and finding it easier to ask for help from teachers as they did not have to ask in front of others.[36]

There was evidence about the impact of the Alternative Certification Model (ACM) and the lack of appeal right due to exceptional circumstances, including those covered by the ASL Act[37]. The Inclusion Ambassadors reported the negative impact the uncertainty around exams and assessments had on young people with additional support needs. They called for consultation with young people on the exam system going forward to ensure it meets the needs of young people with additional support needs.[38]

Low attendance or school avoidance

Recent reports highlight that attendance rates across all schools are lower than they were pre-covid. Attendance rates for pupils with additional support needs are lower than for those without (87.5% compared with 91.6%) with the gap particularly noticeable at secondary school (84.9% compared with 89.6%).[39] Included Engaged and Involved Part 1: A positive approach to the promotion and management of attendance in Scottish states that: “Schools should recognise that poor attendance can often be related to, or be an indication of, an additional support need and they should use their staged intervention processes to ensure that any barriers to learning are identified and appropriate support is provided.”

REACH is a project in Glasgow delivered by Quarriers. It supports children with emotionally based school low or non-attendance. These children experience barriers to attending school including neurodiversity (both diagnosed and undiagnosed), chronic anxiety and poor mental health. REACH is having success at supporting these children to access learning; however, report being hindered by the lack of access to complimentary services such as CAMHS and the family’s lack of information and advocacy to access their rights. For these children, alternatives for learning such as interrupted learners, EVIP or college can be difficult to access due to the presumption of mainstreaming. REACH emphasise that success for these children must be not just about school, but about finding the right learning pathway. It must be child led and parents need to be supported to navigate a complex system.

My Rights, My Say have reported that many children did better working remotely during the pandemic but the option for accessing the curriculum and learning remotely has largely ended now that schools have returned to face to face. For some children with additional support needs, accessing classes remotely may be the right learning pathway. We note that Argyll and Bute have developed creative solutions to the challenges of providing education across a rural and island community. Through the investment in digital video conferencing resources across all secondary schools, students can now access subjects from other schools and colleges.[40] Such measures would prove valuable for children with additional needs who would prefer to continue to learn remotely.

The use of remedies as set out in the Act

The ASL Act put in place what should be effective remedies to ensure that children’s right support is respected and realised, through the use of a statutory Co-ordinated Support Plan (CSP) and what should be an effective right to effective remedy via the First Tier Tribunal Health and Education Chamber[41]. The Tribunal also considers references regarding disability discrimination brought under the Equality Act 2010.

Children aged 12-16 are also able to make requests regarding assessment of their additional support needs and make referrals to the tribunal themselves. Our understanding is that this process is currently working well, but that the number of children doing so remains small. The ability for children to make references to the tribunal was introduced via the Education (Scotland) Act 2016. During the Act’s passage through Parliament and during the development of the accompanying guidance, we expressed our concern that this legislation was not compliant with the UNCRC and in particular Article 12, due to both the restriction to children aged 12 and over and the tests required to make a referral. We shared these concerns with the then Cabinet Secretary for Education and Skills in November 2017[42]. Our position has not changed.

A CSP is an entitlement for any child who meets the definition contained in s2 of the ASL Act. However, the number of children for whom a CSP in place remains, in our view, unrealistically low when compared with the number of children identified with additional support needs. The Pupil Census Scotland for 2022 reported that there were over 705,000 pupils in Scotland. Just over 241,000 of those pupils had additional support needs recorded. Of the pupils with additional support needs, only 1401 had CSPs, which is about 0.2% of total pupil[43]. Of concern is the 11,212 pupils who spend no time in mainstream classes, of whom only 4.5% had a CSP[44].

This has been supported by our discussions with partners supporting children with multiple and complex needs and by enquiries we have received directly where there has been no CSP in place. This includes, for example, disabled children attending residential special schools and looked after children with multiple other education and emotional support needs – our view is that there is no doubt these children meet the threshold for a CSP.

Research by Professor Sheila Riddell in 2019 showed that ASN identification rates increased from 10.3% of the school population in 2010 to 28.7% in 2018. The largest ASN categories in 2018 were Social, Emotional and Behavioural Difficulties, followed by English as an Additional Language and other Moderate Learning Difficulty. Over the same time period the use of CSPs decreased from 0.5% of the school population to 0.3%. In 2018, just under 10% of pupils in special schools had a CSP.[45]

The Scottish Government Short-Life Working Group on Co-ordinated Support Plans[46] identified a number of barriers to children receiving CSPs and proposed increasing awareness of them as a solution. It also recommended strengthening guidance to improve consistency. It is also, importantly, noted the impact resourcing had on the ASL planning process.

The Working Group also made positive recommendations regarding an increasing emphasis on early intervention in both support and approaches to planning, including a more collaborative approach with children and their families. We welcome this but it will require changes to practice and culture.

CSPs are the only legally binding plans for those with additional support needs and the Additional Support Needs Tribunal is the body which considers references made in relation decisions such as about CSPs and placing requests. In 2017-18, there were 92 references to the ASN tribunal. The majority concerned pupils with Autistic Spectrum Disorder and were in relation to placement requests.[47]

The tribunal is recognised as being sector leading in relation to child-friendly processes, but it is not the principal decision making body as most disputes relating to ASN never reach the tribunal. At an ASN roundtable hosted by our office in June this year and attended by Iain Nisbet (Education Law Consultant), Professor Sheila Riddell (Director of the Centre for Research in Education Inclusion and Diversity at the Moray House School of Education and Sport, University of Edinburgh), Angela Morgan (Independent Chair of the Review of Implementation of ASL in Scotland 2019 – 2020) and Margaret Orr (Education Consultant) it was noted that it is the parents with the most resource who can make use of the system. This is at odds with the statistics which show that that pupils who experience social deprivation have a greater likelihood of being identified as having an additional support need, particularly when the need is deemed to warrant a statutory plan.[48] They noted that it is difficult for parents from a lower social class to access support and resources. Poverty is a massive disadvantage for children with ASN. The participants in the round table noted that access to redress is a good thing but increasing access is a further sign of system failure.

In the absence of a CSP, and particularly for children who do not meet the current criteria for one, right to effective remedy is far more limited. Different types of non-statutory plans are used in local authorities, causing confusion and impacting on the ability of advice services to support children and their families through the process. There is limited access to independent review, although parents can make a complaint via the Council complaints process and ultimately the SPSO or a referral to Scottish Ministers under s70 of the Education (Scotland) Act 1980.

For children aged 12-15, and their parents or carers can seek independent adjudication where they disagree with an education authority’s decision on things like whether the child has additional support needs or failure to provide support for those needs. My Rights, My Say report that many of the children are frustrated by the education authority’s refusal to progress the referral under the catch-all “otherwise unreasonable” provisions (Reg 4(3) of the Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005). As this can be exercised entirely at the authority’s discretion and there is no right of appeal, it can effectively act as a veto. This creates a barrier to children making use of their rights and can lead to escalation of conflict between families and the education authority. As the exception is contained within regulations rather than statute, it can be removed or amended by Ministers to protect and promote children’s rights in line with the Parliament’s commitment to incorporate the UNCRC. To better understand how effective independent adjudication is, it is important that data is both collected and regularly reviewed to show rates of requests and refusal.

The Inclusion Ambassadors are a group of secondary-aged pupils who have a range of additional support needs and attend different types of schools. In the 2020-21 group there were 20 Inclusion Ambassadors who represented 13 local authority areas across Scotland.

Members of the group highlighted the importance of support plans. This was related to both ensuring these are in place but also that they are then followed by staff. Several Ambassadors shared their experiences of support plans not being adhered to in schools and highlighted how this affected their wellbeing.

During covid, my plans weren’t reviewed. I don’t know where mine is. I think pupils should have more access to support, you don’t know what you should be getting or the plans may need to change. Feels more like a bit of paperwork the school has to be honest. It should be support that is followed through.” (Inclusion Ambassador)[49]

They recommended that there should be enough specialist staff to meet the support needs of children and young people and to provide tailored, appropriate and consistent support to pupils. At the previous mentioned roundtable, the point was made that it should be the teachers who are working with the child with addition needs and the Pupil Support Assistants manage the class while this is happening. As it currently stands, there is an expectation on untrained teachers to just be able to deal with the aggression, distress and stressful situations that can come from supporting a child with additional support needs.

The Inclusion Ambassadors made the following recommendation about listening and including them in decisions about their support:

  • All school staff, including the Head teacher, teachers and support staff, should ask young people with additional support needs about the support they want. This should take place in a situation and an environment that the young person is comfortable in and feels able to speak out.
  • When talking about support, adults should take notes of discussions to help remember what young people tell them. This simple act shows their voice is being taken seriously and helps young people know they are being listened to.
  • Ensure the outcome is communicated. Follow up with young people after discussing things with them and explain what you are going to do about what they have told you.[50]

[1] In this response we use identity first language, i.e. disabled people, to reflect the preference expressed by most Disabled People’s Organisations in Scotland. The UNCRPD, however, uses person first language, i.e. people with disabilities and we have preserved in direct quotations. We acknowledge that there is disagreement within the disabled community on preferred terminology.

[2] Education (Additional Support for Learning) (Scotland) Act 2004 s1(1)

[3] Nisbett, Iain. 2022. Equality Act 2010 – The Additional Support Needs Blog https://additionalsupportneeds.co.uk/category/equality-act-2010/

[4] UN Committee on the Rights of People with Disabilities, 2016. General comment No. 4 (2016) on the right to inclusive education. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/263/00/PDF/G1626300.pdf?OpenElement

[5] Education (Additional Support for Learning) (Scotland) Act 2004. Section 2. https://www.legislation.gov.uk/asp/2004/4/pdfs/asp_20040004_en.pdf

[6] [2023] UT28. https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/upper-tribunal-pdfs-for-web/2023ut28.pdf

[7] Education and Skills Committee. 27 February 2019. Official Report. https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-in-parliament/ES-27-02-2019?meeting=11971&iob=10824 

[8] UN Committee on the Rights of Disabled People. General Comment No. 4 on Article 24 – the right to inclusive education. https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-4-article-24-right-inclusive

[9] Children’s Health Scotland, 2019. Children in Hospital Survey 2018/19. https://www.childrenshealthscotland.org/wp-content/uploads/2019/10/191016-Children-in-Hospital-Survey-2018-19-FINAL.pdf

[10] Mental Welfare Commission for Scotland. 2023. Young people monitoring report. https://www.mwcscot.org.uk/sites/default/files/2023-11/ChildrenYoungPeople-MonitoringReport2023.pdf

[11] Scottish Government. 2017. Included, engaged and involved part 2: preventing and managing school exclusions. https://www.gov.scot/publications/included-engaged-involved-part-2-positive-approach-preventing-managing-school/

[12] Scottish Government. 2022. School exclusion statistics. https://www.gov.scot/publications/school-exclusion-statistics/

[13] Children in Scotland, The National Autistic Society Scotland. Scottish Autism. 2018. Not included, not engaged, not involved: A report on the experiences of autistic children missing school. https://www.notengaged.com/download/SA-Out-Of-School-Report.pdf

[14] Who Cares? Scotland. 2018. Response to Consultation on Empowering Schools. https://www.whocaresscotland.org/wp-content/uploads/2022/06/WCS-response-to-consultation-on-Empowering-Schools-Education-Scotland-Bill-Jan-18-1.pdf

[15] Equality and Human Rights Commission Scotland. 2018. School Exclusions and Disability Discrimination – McGibbon v Glasgow City Council. https://www.equalityhumanrights.com/sites/default/files/mcgibbon_v_glasgow_city_council_0.pdf

[16] Scottish Government. 2017. Included, engaged and involved part 2: preventing and managing school exclusions. https://www.gov.scot/publications/included-engaged-involved-part-2-positive-approach-preventing-managing-school/

[17] UN Committee on the Rights of the Child. 2021 Day of General Discussion. Children’s Rights and Alternative Care – Outcome Report. https://www.ohchr.org/sites/default/files/2022-06/13Jun2022-DGD-Outcome-report-and-Recommendations.pdf

[18] Scottish Government. 2023. Education Outcomes for Looked After Children 2021/22. https://www.gov.scot/publications/education-outcomes-for-looked-after-children-2021-22/pages/school-leavers-post-school-destinations/

[19] Govan Law Centre. 2015. GLC research reveals systemic failure of councils to meet education duties for ‘looked after’ children in Scotland. https://govanlc.blogspot.com/2015/05/glc-research-reveals-systemic-failure.html

[20] The Promise, 2021. Plan 21-24. https://thepromise.scot/what-must-change/plan-21-24

[21] Children in Scotland. 2022. Pupil Support Staff Engagement Project. https://childreninscotland.org.uk/wp-content/uploads/2022/09/PSS-Report-Aug22-FINAL2-1.pdf

[22] Scottish Government. 2023. Carers Census, Scotland. https://www.gov.scot/publications/carers-census-scotland-2022-23/pages/key-points/

[23] Scottish Government. 2017. Young carers: review of research and data. https://www.gov.scot/publications/young-carers-review-research-data/

[24] Scottish Government. 2023. Adult carer support plan and young carer statement numbers: FOI release. https://www.gov.scot/publications/adult-carer-support-plan-and-young-carer-statement-numbers-foi-release/

[25] Scottish Government. 2017. Young carers: review of research and data. https://www.gov.scot/publications/young-carers-review-research-data/

[26] Scottish Government. 2023. Pupils Census Supplementary Statistics 2022 https://www.gov.scot/publications/pupil-census-supplementary-statistics/

[27] Edinburgh Young Carers. 2022.  Supporting young carers in schools. https://www.youngcarers.org.uk/wp-content/uploads/2022/03/Good-Practice-Document-Space-EYC-Capital-Carers-February-2022-1.pdf

[28] CYPCS and SYP.  Scottish Parliament Education Debate: Joint briefing from the Scottish Youth Parliament (SYP) and the Children and Young People’s Commissioner Scotland (CYPCS).  https://www.cypcs.org.uk/resources/education-debate-syp-cypcs-assessments/#easy-footnote-5-14764

[29] Scottish Government. 2023. Summary Statistics for Attainment and Initial Leaver Destinations, No. 5: 2023 Edition. https://www.gov.scot/publications/summary-statistics-attainment-initial-leaver-destinations-no-5-2023-edition/

[30] Children in Scotland. 2023. Scottish schools recognised for work to support pupil inclusion. https://childreninscotland.org.uk/scottish-schools-recognised-for-work-to-support-pupil-inclusion/

[31] [2016] CSIH 17

[32] Statistical information about the school leaving stage for those with an identified additional support need has been requested from the Scottish Government’s schools statistic division but it was not available in time for this submission.

[33] CYPCS. 2021. Disabled Children (Transitions) (Scotland) Bill. Stage 1 evidence. https://www.cypcs.org.uk/resources/disabled-children-transitions-scotland-bill/

[34] CYPCS and SYP.  Scottish Parliament Education Debate: Joint briefing from the Scottish Youth Parliament (SYP) and the Children and Young People’s Commissioner Scotland (CYPCS).  https://www.cypcs.org.uk/resources/education-debate-syp-cypcs-assessments/#easy-footnote-5-14764

[35] Scottish Government. 2021. Short-life Working Group on Co-ordinated Support Plans (CSPs): Final Report. https://www.gov.scot/publications/short-life-working-group-co-ordinated-support-plans-csps-final-report section 10

[36] Children in Scotland. 2021. Challenging inequality and leading change: a report on the work of the Inclusion Ambassadors from 2020-21. https://childreninscotland.org.uk/wp-content/uploads/2021/08/IA_Report2021_Final-pdf.pdf

[37] CYPCS and SYP.  Scottish Parliament Education Debate: Joint briefing from the Scottish Youth Parliament (SYP) and the Children and Young People’s Commissioner Scotland (CYPCS).  https://www.cypcs.org.uk/resources/education-debate-syp-cypcs-assessments/

[38] Children in Scotland. 2021. Challenging inequality and leading change: a report on the work of the Inclusion Ambassadors from 2020-21. https://childreninscotland.org.uk/wp-content/uploads/2021/08/IA_Report2021_Final-pdf.pdf

[39] Scottish Government. 2023. Summary statistics for schools in Scotland 2023. https://www.gov.scot/publications/summary-statistics-for-schools-in-scotland-2023/pages/attendance-and-absence/

[40] Argyll and Bute Council. 2022. Argyll and Bute Education Strategic Plan 2022-2024. https://www.argyll-bute.gov.uk/sites/default/files/migrated_files/Unknown/argyll_and_bute_education_strategic_plan_2022-24_recovery_progress_and_impact_report_2021-22_final_ac.pdf

[41] Health and Education Chamber, First-tier Tribunal for Scotland. About the Chamber. https://healthandeducationchamber.scot/

[42] CYPCS, 2017. Letter to Cabinet Secretary for Education and Skills. https://cypcs.org.uk/wpcypcs/wp-content/uploads/2020/02/Extending-Childrens-Rights.pdf

[43] Scottish Government. 2023. Pupil census supplementary statistics. https://www.gov.scot/publications/pupil-census-supplementary-statistics/

[44] Scottish Government. 2023. Pupil census supplementary statistics. https://www.gov.scot/publications/pupil-census-supplementary-statistics/

[45] Gillooly, A & Riddell, S 2019 Working paper 1 (statistics update): An overview of statistics on SEN in England and ASN in Scotland https://www.pure.ed.ac.uk/ws/portalfiles/portal/84680931/39_ii_ESRC_SENChildren_WP_1_Update.pdf

[46] Scottish Government. 2021. Short-life working group on Co-ordinated Support Plans (CSPs): Final Report. https://www.gov.scot/publications/short-life-working-group-co-ordinated-support-plans-csps-final-report section 10

[47] Gillooly, A & Riddell, S 2019 Working paper 1 (statistics update): An overview of statistics on SEN in England and ASN in Scotland https://www.pure.ed.ac.uk/ws/portalfiles/portal/84680931/39_ii_ESRC_SENChildren_WP_1_Update.pdf

[48] Gillooly, A & Riddell, S 2019 Working paper 1 (statistics update): An overview of statistics on SEN in England and ASN in Scotland https://www.pure.ed.ac.uk/ws/portalfiles/portal/84680931/39_ii_ESRC_SENChildren_WP_1_Update.pdf

[49] Children in Scotland, 2022. Inclusion Ambassadors: Let’s Talk Education – Our National Discussion. https://childreninscotland.org.uk/wp-content/uploads/2022/12/Inclusion-Ambassadors-National-Discussion-on-Scottish-Education.pdf

[50] Children in Scotland, 2021. Challenging inequality and leading change: a report on the work of the Inclusion Ambassadors from 2020-21. https://childreninscotland.org.uk/wp-content/uploads/2021/08/IA_Report2021_Final-pdf.pdf


pdf Download

Size: 371.35 KB

Download ASN Enquiry – ECYP Dec 23 pdf
Back to top