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Legislation

The Additional Support Needs Tribunals for Scotland (ASNTS) are established by section 17 of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the 2004 Act”). The ASNTS came into being on 21 November 2005. Schedule 1 of the 2004 Act makes provision about the constitution and procedures of the ASNTS, the creation of the office of President, and other matters. It provides that each individual tribunal should consist of a convener and two members, except where there is provision for a convener to sit alone.

Section 18 of the 2004 Act enables parents and young persons to make references to the ASNTS under the following circumstances:

Any parent or young person, or where the young person lacks capacity, the parent, may refer to the ASNTS specified decisions or failures of an Education Authority in relation to the child or young person's co-ordinated support plan (CSP), these include:

  • a decision to prepare a CSP

  • a decision not to prepare a CSP

  • a decision to continue a CSP following a review

  • a decision to discontinue a CSP following a review

  • a failure to meet the timescales for preparing the CSP

  • a decision not to comply with a request to establish whether a child or young person has additional support needs requiring a CSP

  • some of the information contained in a CSP

  • a failure to review a CSP

  • a refusal of a request to review a CSP

  • and a failure to provide, or make arrangements for the provision of the additional support contained in a CSP which is necessary for the child or young person to achieve their education objectives

References to the ASNTS may also be made regarding the refusal of a placing request in respect of a school under the management of a Scottish Education Authority:

  • where a CSP exists

  • where the need for a CSP is established but the CSP is not yet prepared

  • where no CSP has been prepared but the Education Authority have informed the parents or young person that they propose to establish whether a CSP is required or would be required

  • and where a CSP has been refused and that decision has been referred to the tribunal

AND in respect of a school other than a public school;

  • a special school the managers of which are willing to admit the child or young person

  • a school in England, Wales or Northern Ireland the managers of which are willing to admit the child or young person which is a school making provision wholly or mainly for children or young persons having additional support needs

  • a school used a local authority has made arrangements with to provide education for children in terms of section 1 of the Education (Scotland) Act 1980

 

We can also determine claims of disability discrimination relating to the provision of school education in Scotland.  The relevant legislation is referred to in the section of our website dedicated to Disability Discrimination Claims.

Section 19 of the 2004 Act sets out the powers of the ASNTS in relation to references made to it. 

The procedures of the ASNTS are governed by two set of Rules, the Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011 for disability discrimination claims and the Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 for references.  These are supported by Guidance and Directions issued by the President.

A tribunal may require an Education Authority to take action on a timeframe set by the tribunal.  

In exercising its powers, a tribunal must take account of the Code of Practice (section 19 (7)).  When considering the facts of a reference, a tribunal will take account of the extent to which the Education Authority (and other bodies) have had regard to the Code of Practice in matters relating to the case. Section 21 of the 2004 Act provides that both parties may appeal to the Court of Session against a tribunal decision, but only on a point of law.  There is also provision in the Rules for a tribunal to review its decision if:

  1. the decision was based on an error of fact or in law

  2. a party, who was entitled to be heard at a hearing but failed to be present or represented, had a good reason for failing to be present or represented and the interests of justice require  OR

  3. otherwise that the interests of justice require