Changes in special educational needs

Dinah Aitken, Children in Scotland’s solicitor, describes the role of Enquire in offering a national advice service for Special Educational Needs in Scotland

Enquire is the national advice service for Special Educational Needs (SEN) in Scotland. The service is funded by the Scottish Executive, and is run by Children in Scotland. Enquire is open to use by parents, professionals, those representing parents, and to young people themselves. The service includes a telephone helpline, a training function, liaison with others in the SEN field and the establishment of a pilot mediation scheme. The need for an information service was established in response to a question posed in a Scottish Office discussion paper on SEN in 1998. The issue had arisen from a growing awareness that the parents of children with SEN were having difficulty in accessing information and advice relating specifically to the education of their children.

Education law framework

The telephone helpline was launched in November 1999, since when it has received more than two thousand calls. In response to this demand, the Enquire team has become extremely knowledgeable in what is undoubtedly a specialised area of the law. In November 2001 the Law Society, in association with Enquire, presented a day’s seminar on education, with the emphasis on SEN. An article in the Journal in July 2001 outlined the current education law framework applicable in Scotland.1 This article will focus on the position of SEN within that framework, and will highlight areas of the law which are under development. At the same time it will indicate some of the ways in which Enquire has adapted its services to keep up with changing legislation and policy.

The challenge for Enquire, as it is for solicitors and all those working in an advisory capacity, is to remain abreast of legislative changes. The pace of change has quickened of late as the Scottish Executive has responded to the demands of UK legislation, and committed itself to an overhaul of the present system of provision for SEN in Scottish schools. The anticipated development of a national SEN strategy will now be included within the much wider ranging National Education Debate initiated by Cathy Jamieson soon after her appointment as Minister for Education and Young People. Enquire has sought to respond to these changes and developments in a variety of ways, including launching a pilot legal subscription service. This aims to provide guidance on accessing the principle sources of legislation or policy regarding SEN, together with regular updates on changes in policy and in law, some of which are referred to here.

In her article, Lesley-Anne Barnes highlighted how the Standards in Scotland’s Schools etc. Act 2000 adopts a child-centred approach to education.1 This includes directing education to the “fullest potential” of the individual child, and establishes education as the right of the child. The Act also directs that, unless particular circumstances apply, all children should be educated in mainstream schools s15.2 This provision will have a considerable impact on all education authorities. Guidance on how the provision should be put into effect is required, and is something which the Scottish Executive is expected to produce in the very near future. In the meantime, s15 has not yet been put into effect.

Record of Needs

For many parents and professionals, the process of opening, reviewing and implementing a Record of Needs for a child with SEN is of much consequence. The Education (Scotland) Act 1980 contains the legal framework for, and makes provision for appeal against certain parts of, the Record. However, a Record of Needs is opened in respect of only 2.1% of school-age children. The whole process of assessing a child with a view to deciding whether a Record should be opened is to be found in the 1980 Act supplemented by substantial Scottish Office guidance.3

For some time, however, there has been a commonly held view that the Record of Needs procedures may not represent the most effective way of adequately meeting the special educational needs of children. Recognising this, the Executive has recently consulted widely over the Record, and, in February 2002, published a report on the consultation.4  This indicates that the Record will be replaced by a Co-ordinated Support Plan, which will be appealable where it relates to provision, unlike the Record of Needs. Local authorities will come under a duty to provide mediation services, and to make information on SEN available to parents, young people and children. It is anticipated that there will be further in-depth examination of the key issues identified during the consultations and that, ultimately, there will be legislation to enact the reforms. This most recent review of the provision of SEN is set against the background of a series of reports such as the Riddell report, the Beattie committee report, The Same As You? review and the recent For Scotland’s Children report.5 There has also been a number of investigations into issues such as school discipline, ethos in schools, autism, and mental health and well-being which have informed the current debate.

Individualised educational programme

Guidance suggests all children with a Record and those in special settings should have an Individualised Educational Programme (IEP) and, as a matter of good practice, so should children in mainstream without a Record, but with significant support needs. Local authorities have recently undergone an audit of their practices in the use of IEPs. Therefore the issue of an IEP is also of concern. The concept of IEPs flowed from the EPSEN Report, which recommended that provision for children with SEN should ensure that children are enabled to progress by achieving educational goals “…in line with their aptitudes and abilities.”6 There is currently no legislation on IEPs, although good practice recommendations do exist.7 However, the recent review of Records of Needs states that schools will be required to draw up an IEP for children with additional support needs, and the guidance will be updated to say at what stage an IEP should be drawn up.

Although education is a Scottish legislative concern under devolution, UK legislation continues to be significant, however. The Special Educational Needs and Disability Act 2001 requires LEAs in England and Wales to plan for the education of disabled students, by drawing up accessibility strategies. The disability sections of the Act are applicable in Scotland, but no equivalent planning duty was imposed on Scottish education authorities. Responsibility for the provision of a planning duty rests with the Scottish Parliament, and the resulting Education (Disability Strategies and Pupil Records) (Scotland) Bill is currently making its way through the Scottish legislative process. The Bill, as its title suggests, not only encompasses disability planning but also makes provision for Ministers to promulgate regulations regarding access to pupils’ records. Although the latter might have been better served by separate legislation, they will, nevertheless, be a welcome addition to the panoply of education legislation. It is hoped that the regulations will clarify the somewhat confused situation which presently exists due to the fact that the Data Protection Act 1989 has effectively emptied the School Pupil Records (Scotland) Regulations 1990 of all force.

The SEN and Disability Act will not come into force until September 2002. The Act makes it unlawful to discriminate against disabled students by treating them “less favourably” than students for whom the reason underlying the less favourable treatment does not apply, or by failing to make “reasonable adjustments.” At Enquire, we receive numerous calls on issues, which we consider will contravene the Act once it is in force. Examples include a child in a wheelchair who has not been allowed to participate in PE with his class, or a child with Downs Syndrome excluded from practical classes. We also believe that children with SEN exhibiting social emotional and behavioural difficulties, where these pupils have a disability, are currently, on occasion, excluded from school in circumstances that may prove to be unlawful after September 2002.

The Disability Rights Commission has drafted a Code of Practice for schools, and for post 16 educational establishments, which will provide practical guidance on the implementation of the Act.8 The Code of Practice is also making its way through Parliament, although in this case the process is happening at Westminster. It is anticipated that the finalised Code will be published in May 2002.

It is to be hoped that legislation will be introduced which will clarify many of the current legal ‘grey areas’ arising from the reliance on guidance and policy which are themselves open to divergent interpretation by individual local authorities. These ‘grey areas’ impact particularly on those children who do not fall within the 2.1% who meet the criteria for a Record of Needs but who, nevertheless, need support in order to progress in their education.

To keep our knowledge of SEN developments as up to date as possible, the Enquire team has to be aware of legislation, regulations, guidance and good practice recommendations. Local authorities also produce their own policies on SEN strategies and it is important to be aware of these in determining the appropriate advice to callers from different areas of Scotland. We are fortunate to be part of a larger agency with a strong policy and research department. Children in Scotland has been directly involved in the consultations on the review of the Record of Needs, the review of educational psychology services, and the drafting of the DRC Code of Practice for schools, for example. Members of Children in Scotland staff sit on the national SEN Forum and co-ordinate the Special Needs Advisory Group. The latter group oversees SEN policy work within the agency, responding to policy issues emanating from the Scottish Executive and facilitating consultation by the Executive throughout Scotland with parents, children and young people and its members from the voluntary and statutory sectors.

Enquire is able to draw on this expertise to supplement on-going training within the team. Enquire’s primary function is to make SEN advice and information available as widely as possible. As well as the telephone helpline, information is available in a range of publications, or via the website (www.childreninscotland.org.uk/enquire.htm). We have introduced the pilot legal subscription service in order to be responsive to the current position of SEN in the Scottish legal framework.

We are optimistic that there will be many educational benefits for children and students of further or higher education arising from new legislation, whether it has already reached the statute books, or is presently making that journey. We will continue to contribute to policy wherever we can, and keep ourselves informed of the latest developments.

For information on the range of services offered by Enquire, including the legal subscription service, contact Marian Hector, Administration Assistant, 0131 222 2425.

Dinah Aitken, is a solicitor. She is employed by Children in Scotland as the Senior Information and Advice Manager (job-share) of ENQUIRE – the national advice service for special educational needs in Scotland.