Never mind named person, an innovative idea is already ignored
Education Law Consultant Iain Nisbet argues existing legislation on additional support for learning is ignored amidst the furore surrounding the named person
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The Deputy First Minister’s announcement that implementation of the Named Person legislation will now be in 2018 further pushes back the date of the related Child’s Plan coming into force.
Amid all of the furore about this issue, it is easy to forget that Scotland already has a statutory framework to promote, protect and safeguard the wellbeing of children and young people – and that it is here to stay.
Indeed, due to these delays, it is not in the Children and Young People (Scotland) Act 2014 that the famed SHANARRI wellbeing indicators will get their first statutory airing, but in amendments to the Education (Additional Support for Learning) (Scotland) Act 2004, due to come into force later this year.
The statutory Code of Practice on additional support for learning has been fully signed up to GIRFEC principles, practice and terminology since 2010.
And the coming into force of the 2014 Act (whenever that may be) does not draw the curtain on the era of additional support needs legislation. No part of the 2004 Act is to be repealed or replaced.
If anything, the law relating to children and young people with additional support needs will be of even more relevance due to the increased potential for effective multi-agency working.
So why is the 2004 Act overshadowed by new initiatives? It is left to one side, while the real action lies with legislation not even in force yet.
Is it seen as obsolete, even, like a record player in a digital age? Is the problem here, to paraphrase GK Chesterton on Christianty, that it has not been tried and found wanting, it has been found difficult and left untried?
The Act was innovative at the time. It remains so today. It is looked to by other jurisdictions as model legislation, particularly in terms of its inclusion of all children and young people who require additional support “for whatever reason”.
The Scottish Government remains committed to the Act as the principal means of implementing its duties under the UN Convention on the Rights of Persons with Disabilities (UNCRPD) in the field of education.
Yet securing necessary support for pupils with additional support needs remains a source of anxiety for many families.
Support agencies like Enquire, Kindred and Mindroom are as busy as ever. There is a regular drumbeat of media stories locally and nationally about schools struggling to provide adequate levels of support for pupils with additional support needs.
In response, the Scottish Parliament's Education and Skills Committee recently sought fresh contributions regarding additional support need. Reading the contributions by parents and professionals alike is eye-opening for the newcomer and depressingly familiar to those who work in the sector.
To give just one example, the submission by Dr Jonathan Sher is a cogent and pointed analysis of how the system works – and how it ought to – particularly with reference to children with Foetal Alcohol Spectrum Disorder.
The responses from teachers and support assistants (many anonymous) are also highly instructive.
A letter from ADES and COSLA cautions against reading too much into this “overly anecdotal” evidence. It also acknowledges “that local government budget cuts have led to a cut in resources previously available to our families.” while also warning of the dangers of rushing to new legislation.
There is much to agree with here. Budgets are undoubtedly having an impact on the support available, and parents are being explicitly told so as never before. It is also correct to say that new legislation is probably not the answer, but making sure that the existing legislation is being consistently and completely implemented may well be.
What does the Act require? Section 6 is the starting point.
For every child within an education authority who appears to have additional support needs, a formal decision (in writing, with reasons, including information on mediation and dispute resolution) on whether the child does indeed have additional support needs or not.
While the process can be triggered by a parental request, the law says that education authorities have the duty to lead on this – it is an ongoing and proactive duty.
This rarely happens.
Research carried out by Govan Law Centre in 2013 and again in 2015 demonstrates that legal duties of assessment for looked after children in particular are not being complied with in at least 50 per cent of cases.
These principal duties of identification of additional support needs among children and young people for whose school education an authority are already responsible, have been systematically misapplied (or not applied) for over a decade.
Does it matter? Children with additional support needs are still identified in a less formal way, and provision is made. Would it make things better for children for there to be more paperwork, more information in writing, potentially more disputes to be resolved?
As the legislation has never been implemented properly in this respect, it is difficult to tell. The greater parental involvement which would be required for the formal implementation of the Act might well be of benefit in improving outcomes. This would be in keeping with the National Improvement Framework which identifies parental engagement as a key factor in closing the attainment gap.
However, while additional support needs were once one of the five National Priorities for Education introduced under the Standards in Scotland’s Schools etc. Act 2000, they do not feature in the four key priorities of the National Improvement Framework (NIF). The term “additional support” appears only once in the NIF – in the context of national assessment of children’s progress.
For the nation’s attention to be wandering from the additional support needs law without it ever being properly and fully implemented – and funded – is disconcerting to say the least.
The ASL Act was (and still is) ambitious and inclusive legislation with genuine cross party support. ADES and COLSA are correct: Scotland does not need new legislation. How about simply giving the law we already have a try?
Iain Nisbet is a solicitor and education law consultant
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