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Previous to the 2004 Act being commenced (14 November 2005), provision for children and young people facing barriers to learning was governed by the provisions of the Education (Scotland) Act 1980. The special educational needs framework set out in the 1980 Act only applies to children and young people with particular types of learning needs. A small number (about 2%) of children with more pronounced, specific or complex needs are given a Record of Needs.
Appeals relating to Records of Needs go to Education Authority Appeal Committees, Scottish Ministers or the Sheriff Court depending on the nature of the appeal. Only certain parts of a Record can be appealed. There is no right of appeal about provision.
In 1999, the Advisory Committee on the Coordination and Provision of Education for Severe Low Incidence Disabilities, chaired by Professor Sheila Riddell, produced its report: Report into the Education of Children with Severe Low Incidence Disabilities. This report recommended that the Government should review the legislative framework for special educational needs provision to ensure that it does not disadvantage particular children or groups of children. The Scottish Government launched a consultation exercise on that report in September 1999, the results of which were published as Improving Our Schools: Responses to the Riddell Report.
In June 2000, the Scottish Committee of the Council on Tribunals undertook a review of Education Appeal Committees in Scotland which drew attention to, and favoured, the dedicated Special Educational Needs Tribunal in England and Wales. The National SEN Advisory Forum, in its review of Record of Needs procedures in February 2001, also recommended the establishment of an independent expert appeal mechanism similar to the tribunal system in England and Wales.
In May 2001 the Executive launched a consultation, Assessing our Childrens Educational Needs The Way Forward, on assessment and recording for children with special educational needs in Scotland. This was in response to growing concerns about the current assessment process. The consultation aimed to look at how best to move from the current recording process in order to create a system which provided the very best education for the individual needs of the child.
Following the consultation Scottish Ministers proposed a revised framework, Assessing our Childrens Educational Needs The Way Forward- Scottish Executive Response to the Consultation. This framework was based around the duty on education authorities (under section 2 of the Standards in Scotlands Schools etc. Act 2000) to secure education that is directed to the development of the personality, talents and mental and physical abilities of the child to their fullest potential. The 2000 Act places on education authorities an obligation to ensure that children's additional support for learning needs are met.
It was proposed that the Record of Needs be replaced with a co-ordinated support plan, which would be provided for children with complex educational needs, which were such as to require continuing review. It was proposed that both parents and children would also have the right to appeal against any part of the co-ordinated support plan.
The Scottish Government also stated that it expected to establish an expert tribunal, funded by the Government but independent in status, to hear appeals. The tribunal would be open, accessible and user-friendly for parents and children. It would also aim to be efficient and to deal with appeals more quickly than under the current system.
A draft Bill was published for consultation by the Scottish Government in spring 2003. Over 10,000 copies of the consultation document were distributed to headteachers, Parent Teacher Associations, voluntary and parent organisations, education authorities, NHS Boards, directors of social work and others. In February and March 2003, 14 consultation seminars were held all over Scotland. Children in Scotland were commissioned to consult children and young adults aged between 11 and 20 so that their views could be considered.
The Education (Additional Support for Learning) (Scotland) Bill was introduced on 28 Oct 2003, following preliminary discussion by the Education Committee. During Stage 1, the Education Committee, Equal Opportunities Committee, Finance Committee and Subordinate Legislation Committee of the Scottish Parliament all considered the Bill. The Education Committee took evidence over 10 meetings from November 2003 to January 2004.
Amendments to the Bill were considered by the Education Committee during Stage 2 in February and March 2004. The Subordinate Legislation Committee considered the Bill again on 30 Mar 2004. The Bill was passed at Stage 3 on 1 Apr 2004 and received Royal Assent on 7 May 2004. Reports of all these meetings and debates can be found on the Scottish Parliament website.
Only sections 29, 32, 34 and 35 of the 2004 Act came into force on Royal Assent. These sections deal with procedural matters such as interpretation, ancillary provision and the manner of making secondary legislation. Since May 2004, the Scottish Government has consulted on and developed the code of practice and other regulations.
Section 17 of the 2004 Act was commenced on 3 May 2005 to bring the Additional Support Needs Tribunals for Scotland into being. This section has been commenced before the majority of the 2004 Act so that the recruitment of a President, conveners and other members could begin.
The Tribunals will be interested in what the child thinks about their education.