Section 18 of the Education (Additional Support for Learning) (Scotland) Act 2004 (“the 2004 Act”) enables parents, children (aged between 12 and 15 years) and young persons to make references to the ASN Tribunal under the following circumstances:
Co-ordinated support plans
Any parent or young person, or where the young person lacks capacity, the parent, may refer to the ASN Tribunal specified decisions or failures of an Education Authority in relation to the child or young person's co-ordinated support plan (CSP). A child aged between 12 and 15 years can also bring such references to the ASN Tribunal where they have capacity to do so and their wellbeing would not be adversely affected.
The decisions or failures that may be appealed 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
Capacity and wellbeing
References may be made by a parent or child in circumstances where they disagree with a decision of the Education Authority in respect of the child’s capacity or wellbeing when a child has sought to exercise a right under the 2004 Act. The President has introduced Guidance to Tribunal Members No 01/2021 to clarify the approach to be taken by a tribunal when considering the two tests of 'capacity' and 'wellbeing'.
References to the ASN Tribunal may also be made by a parent or young person 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
Section 19 of the 2004 Act sets out the powers of the ASN Tribunal in relation to references made to it.
The procedures of the First-tier Tribunal for Scotland Health and Education Chamber are governed by The First-tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 ('the 2018 Rules') (schedule to SSI 2017/366) .
The regulations are supported by Guidance and Information Notes issued by the President.