Amongst the calls and emails Enquire receive are regular questions about the right to support without a diagnosis. Here, Jennifer Drummond explores what the UNCRC, as well as existing legislation, means for those going through or awaiting assessment – and how Enquire can help.  

When the UNCRC Incorporation (Scotland) Bill was unanimously passed by the voting members of the Scottish Parliament, it enshrined in law a commitment to protect the fundamental rights of children and young people. These include specific rights related to education, play, food, health, housing and family life that apply to all young people under the age of 18. The Bill became an Act of Parliament in January 2024 and was accompanied by a six-month deadline for public authorities to ensure they are upholding the rights outlined in the Act.  

For children and young people who are disabled, neurodivergent or facing mental health struggles, there are several rights (known as ‘articles’) which are relevant to getting support to access and benefit from their education.  

But protecting the rights of pupils to access education is not new in Scotland. The Education (Additional Support for Learning) (Scotland) Act 2004, sometimes referred to as the ASL Act, defines additional support needs being present if a child or young person, for whatever reason, is unable to benefit from school education without additional support. It highlights the right for children at school or nursery to get the support they need – regardless of if this is accompanied by a medical diagnosis.

The right to support – with or without a diagnosis

A formal diagnosis may help the school or nursery better understand what kind of support might suit or be available. However, this does not change the legal right to access education and be supported to do so, as outlined in the ASL Act.  Children and young people are entitled to support as soon as it is recognised that they need some extra help to fully benefit from their education, including if they’re on a waiting list for further assessment. It is also important to remember that pupils may need support for reasons that do not come with a medical diagnosis – experiencing poverty, English as an additional language or being a young carer, for example.  

The Enquire helpline often takes calls from parents and carers concerned that their child is stuck in a support limbo; they are recognised as needing support but are lacking a diagnosis to strengthen the request. The rights outlined in the ASL Act, and now the rights enshrined in Scots Law as a result of the UNCRC (Incorporation) (Scotland) Act should, in   time, lead to a greater understanding across parents, carers, young people and professionals that a diagnosis is not the key to unlocking support – a recognition of need is enough. 

Working with school

The Getting the right support in place for my child section on our website explains what the law says about additional support in school, including how a child’s needs can be identified and assessed. It has more information on how support is planned and what type of plan might be used – from an informal agreement to more formal written plans such as an individual education programme (IEP) or co-ordinated support plan (CSP). We also cover the right for parents, carers, and young people themselves to be involved in planning. 

We identify some helpful practical tips for parents and carers, including the suggestion of some things to share with any nursery, school or other educational establishment such as:  

Our Working with school section offers more information on getting the most from meetings, developing a positive relationship with school, working together along with more guidance and advice.  

Supporting professionals

The Scottish Government’s latest statistics for schools identified approximately 37% of the pupil population as having a recognised additional support need, with the most used form of support identified as the class teacher in both primary and secondary settings (Scottish Government Pupil Census 2023).

Enquire have a range of resources to aid teachers and educational professionals who need to plan support around learners with additional needs.  

Our pages for professionals cover; understanding the right to support (including support without a diagnosis), planning and delivering support and working together with children and their families. It also hosts a series of short, free eModules around key topics relating to supporting learners with additional needs as well as practical classroom and school resources created by the Inclusion Ambassadors.  

All these resources have been designed with teachers and other professionals in order to support them to support learners with additional needs, and their families, in a practical way. 

Rights into reality

We know delivering additional support for learning is not an easy task, especially in the current context of stretched resources and increasing need. But we also know it is not just a nice thing to do – it is the law. Every child has the right to access and benefit from their education, and the right to support to ensure they can do so.  

The UNCRC will not solve problems overnight. But we remain hopeful that through more awareness of the UNCRC, the legal requirements outlined in the new Incorporation Act, current legislation and ongoing education reform work, the rights of young people with additional support needs will be upheld. For our part, we will continue to support parents, carers, young people and professionals to make rights a reality. 

Jennifer Drummond is Enquire’s Senior Communication and Engagement Officer

View the recording of our free webinar for parents and carers, Support at school without a diagnosis, held jointly with the charity, Contact on Wednesday 30 October, 2024. (Opens in You Tube).