By law, every child has the right to be provided with a school education. They also have the right to receive “adequate and efficient” support if they have been identified as having additional support needsThis is the legal definition of additional support needs from the Education (Additional Support for Learning) (Scotland) Act 2004, as amended. A child or young person has additional support needs....
This means that your child has the right to attend school and receive support that meets their individual needs and helps them to reach their fullest potential. All children have the right to have their views listened to and should be involved in decisions about their support.
Children also have, in most cases, the right to appeal against being excluded from school. By law some children have other specific rights. You can find out more about these below.
If your child is 3 or under your local authority must provide appropriate support if they have additional support needs because of a disability.
If your child is attending a local authority nursery or preschool (or one working in partnership with the local authority), they have the same rights to support as children attending school. The local authority has a duty to identify their needs and provide support to meet these needs.
As of 10th January 2018 the rights of children aged 12 - 15 have been extended to give them many of the same rights as their parents and carers and children over 16 under the Additional support for Learning Act. This has been done so that children's views are listened to and they are properly involved in decisions about their education and support. It is hoped that these rights will be of particular use to children whose parents may not be able to act for them (for example young carers or looked after children).
Children aged 12 -15's have the right to:
- ask the local authority to find out if they have additional support needs
- ask the local authority to find out if they need a co-ordinated support plan (CSP) or review an existing CSP
- have their views noted in their CSP
- ask the local authority for a specific type of assessment to find out if they have additional support needs and what support they need
- ask the local authority for a specific type of assessment if the local authority are thinking about preparing a CSP or reviewing an existing CSP
- information and advice about their additional support needs
- any decisions regarding their use of their rights
- a copy of their CSP
- ask for independent adjudication
- appeal to the Additional Support Needs Tribunal about CSPs or the failure of their school to plan for the time after they leave school
- be asked for their views during any independent mediation that takes place
- to have a supporter or advocate with them to get their views across at any relevant meetings about their additional support needs
- to use the My Rights My Say children's support service to help them make use of their rights.
- be asked if they are happy for their information to be shared with relevant agencies when they leave school
If your child is aged 12 - 15 and wants to use these rights the school or local authority must first check whether your child has the capacity to do so. They must also decide whether your child's use of their rights would have a negative affect on their wellbeing.
In many cases professionals will have identified your child's needs and be working with you and your child to agree the support needed. Your child may not need to go through a formal process of asking to use their rights but this option is available.
If your child is aged 12 - 15 and is thinking about using their rights you may want to talk to them whether they will do so or whether you will use your parental rights. It is not expected that parents and children will use their rights at the same time or to overturn a request to a school or local authority has already considered.
To get in touch with the children's service My Rights, My Say email email@example.com
You can find more information about your child's rights, how they can use them and how capacity and impact on wellbeing is assessed in our Children's Rights to education and additional support in school factsheet below.
When your child turns 16, and have capacity, it is assumed they will be able to act on their own behalf. This means they have the same rights as you. Even after a child turns 16, most parents remain involved in their children’s education, attending planning meetings and receiving copies of any letters or plans. However in some cases (such as when a child is over 16 and excluded from school) communication from the school may be directly with the pupil.
If you child is over 16 and has been assessed as lacking capacity you can make decisions on their behalf. Refer to the Adults with Incapacity (Scotland) Act for more information.
Looked after children (including those looked after by relatives, kinship carers, foster carers and those in a residential unit, school or secure unit) have the same rights to extra support in school as other children.
All children who are looked after are automatically assumed to have additional support needs unless they are assessed and it is decided they don't have additional support needs. If a child is assessed as not requiring extra support at one time, they may still need extra support further down the line to cope with disruptions or upset caused by leaving a foster family, moving home or changing school. The local authority must consider whether a looked after child needs a co-ordinated support plan (CSP).
Education, social work and staff from other agencies should work together to assess and plan the support a looked after child needs. Local authorities should have detailed policies on the education of looked after children to makes sure this happens. The child should be involved in planning their support and have a say in decisions about what they will learn at school and the support they need.
If a child is looked after, their home authority has responsibility for their education even if they are:
- placed in accommodation in another local authority and attending a school in that authority
- placed in a school in another local authority, for example, because school provision that meets their needs is available there.
Some children who have additional support needs are disabled.
Disability is defined as “a physical or mental impairment that has a substantial, long-term, adverse affect on [a person’s ability] to carry out normal day-to-day activities”.
Under The Equality Act 2010, local authorities and education providers must not discriminate against your child because of their disability. This means they should not treat your child less favourably and must make reasonable adjustments to help them take part in all areas of school life. Local authorities must make education accessible and remove barriers to learning for disabled pupils.
If you feel that your child's school has discriminated against them because of their disability, you can make a claim to the Additional Support Needs Tribunals for Scotland.
It’s important to know that a child who does not have or is waiting for an assessment for a formal diagnosis of a particular condition still has the right to receive support.
Although a diagnosis can help the school to understand a child’s needs and plan support, if there is not a formal diagnosis a school should still put support in place.
This also applies if a child is being assessed or waiting for an assessment. The school should provide support that helps them learn and be included in school life.
- get in touch with Enquire helpline if you have any question about your child's rights to support in school
- order a copy of our Parents' guide to additional support for learning
- talk to your child's class or guidance teacher about your concerns
- visit Reach, Enquire's website for children and young people, to help your child understand their rights to support in school
- suggest your child gets in touch with the My rights, My Say if they are aged 12-15 and want to use their rights.