Extending the rights of children with capacity under the Education (Additional Support for Learning)(Scotland) Act 2004 (as amended) and Repealing Section 70 of the Education (Scotland)Act 1980 Consultation paper

The Scottish Government is currently consulting on proposals to extend the rights of children with capacity under the Education (Additional Support for Learning) (Scotland) Act 2004 and a proposal to remove section 70 of the Education (Scotland) Act 1980.

There are two options proposed on extending rights:

Option 1: To extend existing rights of appeal to the Additional Support Needs Tribunals for Scotland to children with capacity.

At the moment children with additional support needs have the right to have their views considered and taken account of.

The Equality Act 2010 meant that from March 2011 a child with capacity could bring a disability discrimination case to the Additional Support Needs Tribunal. Therefore a child with capacity could bring a disability discrimination case to the Additional Support Needs Tribunal but not bring an additional support for learning case before the Tribunal.

Extending the right to appeal to the Tribunal to children with capacity would be in line with the recommendation made by the United Nations Convention on the Rights of the Child (2008), strengthening the rights of children, including looked after children, by ensuring they have an opportunity to have their cases heard at the Tribunal and are not restricted by their circumstances. The proposal also compliments the proposals put forward by the Children and Young People (Scotland) Bill by putting children’s rights at the centre of public services

Option 2.   Extend all rights under the Education (Additional Support for)(Scotland) Act 2004 (as amended) to children.

The Scottish Ministers will consider proposals to extend all rights under the 2004 Act to children with legal capacity. This change in rights would not only allow any child with capacity to bring a claim to the Tribunal but to also request an assessment on the provision of support from the education authority. For full details of parents and young people’s rights under the Additional Support for Learning Act see the consultation papers or Parents’ guide to additional support for learning.

Section 70 of the Education (Scotland) Act 1980

Under section 70 of the Education (Scotland) Act 1980 any interested party can make a complaint to the Scottish Ministers that a responsible body (the managers of a school or education establishment, an education authority or other persons) has not met their duties relating to education. The Scottish Ministers propose to repeal section 70 of the Education (Scotland) Act 1980, this would remove the complaints mechanism under this section. Repealing section 70 would not remove the right to make a complaint regarding education issues.

Specific Complaints – Schools Closures

It is proposed that section 70 of the 1980 Act be retained in respect of the Schools (Consultation) (Scotland) Act 2010.

Questions being asked include:

  • Do you think the Scottish Ministers should amend the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) to ensure that disagreements are resolved at as local a level as possible, therefore ensuring that a complainant has attempted independent mediation?
  • Do you think the Scottish Ministers should repeal section 70 of the Education (Scotland) Act 1980, removing the opportunity to complain directly to the Scottish Ministers with the exception of provisions of the Schools (Consultation) (Scotland) Act 2010?
  • If do you think this do you think in future the Scottish Public Service Ombudsman should consider failure of duty complaints which are currently considered under section 70 of the Education (Scotland) Act 1980?
  • With the exception of provisions of the Schools (Consultation) (Scotland) Act 2010, do you think that the Ministerial powers under section 70 to make an order to carry out a duty should be transferred to the Scottish Public Service Ombudsman?

To provide your views download the consultation paper from the Scottish Government website.

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