Scottish Government, 2013

This consultation paper seeks comments on proposals to extend the rights of children with capacity under the Education (Additional Support for Learning) (Scotland) Act 2004 (as amended) and proposals to repeal section 70 of the Education (Scotland) Act 1980.

Section 3 of the Education (Additional Support for Learning)(Scotland) Act 2004 (“the 2004 Act”) provides that for the purposes of that Act a child or young person “lacks capacity” to do something “if they are incapable of doing it by reason of mental illness, developmental disorder or learning disability or of inability to communicate because of a physical disability”

Currently the rights provided by the 2004 Act, in conjunction with the Standards in Scotland's Schools etc. Act 2000, afford children with additional support needs the rights to have their views considered and taken account of. The views received on this consultation will inform the Scottish Government's considerations on how the rights of children with capacity under the 2004 Act can be extended.

There are two options proposed. Option A is to extend existing rights of appeal to the Additional Support Needs Tribunals for Scotland to children with capacity. Option B is to extend fully all of the rights under the 2004 Act which parents currently hold, to children with capacity.

Further proposals relate to section 70 of the Education (Scotland) Act 1980 and the dispute resolution framework set out under the 2004 Act.