ASN in schools: getting it right for every child?

The capacity of local authorities to provide education for pupils with additional support needs (ASN) was brought into the spotlight by the high-profile incident at Kaimes special school in Edinburgh, where eleven teachers refused to teach over the behaviour of eight pupils.

Kaimes is for pupils with complex, long-term needs, but the vast majority of ASN pupils are placed in mainstream schools.

In fact, the incident masks a reality where councils rarely meet the statutory requirements to identify and meet the needs of ASN children, as revealed in a recent Holyrood event on the matter.

While the number of ASN pupils has trebled in five years, the average spend per pupil by local authorities on additional support for learning decreased by 11 per cent between 2012 and 2016.

This is despite a statutory duty to identify additional needs and provide a co-ordinated support plan (CSP) if those needs meet the criteria.

But despite nearly 27 per cent of Scotland’s pupils now being identified with ASN, only 0.3 per cent have a CSP in place, according to Professor Sheila Riddell of Moray House School of Education, University of Edinburgh.

Part of this is down to the fact that what is classed as ASN has broadened to include temporary things like broken legs, but the figure is still concerning, especially when the equivalent statutory plan in England, the education and health plan, is provided to nearly three per cent of pupils, and its use is growing.

“You are ten times as likely to get a statutory support plan in England as you are in Scotland,” Riddell told delegates.

After the introduction of a ‘Child’s Plan’ under Getting it Right for Every Child (GIRFEC), many parents are being told they do not need a CSP, or that they don’t qualify.

One local authority representative told our event they saw the Child’s Plan as an alternative: “Do we really need a CSP in place to make sure that child’s needs are met? I would hope not.

“I don’t think CSPs are great. I don’t think they capture short-term planning in terms of education. I think we’re getting that right with our planning.”

However, May Dunsmuir, president of the Health and Education Chamber of the First-Tier Tribunal for Scotland, told delegates they don’t have a choice.

“In fact, if a child meets the statutory criteria for a CSP, they must have one,” she said.

“In a school, if you have a child and you are going for the Child’s Plan route but they actually meet the criteria, you are failing in your statutory obligations.”

She added: “I don’t like the criteria for the CSP, I think it ought not to be as strict as it is, but the law doesn’t give you that choice. It’s an obligation.

“If you want to make it a simpler process then lobby for that. Agitate for that.”

She said local authorities had displayed an “absence of responsibility in terms of the law” on the matter.

“Whether you are an education authority or a third sector organisation, have a look at the children who are represented in your organisation, at just how many of them are having their rights met,” she said.

“When is a right a right? A right is only a right if you know you’ve got it and it is exercised. The bottom line is, are you exercising your responsibility in connection with that right? We have to be careful not to talk as if there is a choice. There isn’t.”

As a non-statutory document, however useful or adaptable a Child’s Plan is, it has “no set format, no timescales, no routes of redress,” said Riddell.

The ambition of the 2004 Additional Support for Learning Act seems far from being realised. Riddell said it had not been followed up with regulation, inspection or enforcement. 

As the Scottish Government awards children more rights, so have council resources diminished for those rights to be realised. The number of specialist ASN teachers, for example, has fallen for five years in a row.

by Tom Freeman

Additional support for learning funding cut by 11 per cent since 2012

In fact, the right to provision of additional support for learning has an important caveat attached which has apparently grown in relevance since 2004. A council is only obliged to provide support which doesn’t incur “unreasonable public expenditure”, according to Cairn Legal’s Iain Nisbet.

What a council deems reasonable may well have changed in 15 years of budgetary pressures.

Once a CSP is in place, however, the caveat is removed for any support listed in it. Could this be a factor in why so many local authorities are reluctant to put them in place?

Meanwhile, the Scottish Government has continued to attempt to broaden rights, hailing amendments to the legislation in 2016 as “the biggest extension of rights in Europe”.

These amendments mean a child over 12 can independently request an assessment of their needs and CSP. They can also ask for it to be reviewed.

However, as Nisbet pointed out, to exercise their right to do so there are up to nine procedural stages they have to go through before a request is granted. Crucially, one of these is the local authority deciding whether the child has capacity to exercise their own rights.

This caveat led to the Equality and Human Rights Commission being critical of the reform, pointing out local authorities have retained the final say.

Riddell said: “It’s OK to implement legislation but then you have to look at what is actually happening on the ground. Is anything changing? If nothing changes, the legislation might make everyone feel good but that’s about the extent of it.”