Education (Additional Support for Learning) (Scotland) Act 2004

Circumstances in which duty does not apply S

3 (1) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply— S

(a) if placing the child in the specified school would—

(i) make it necessary for the authority to take an additional teacher into employment,

(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,

(iii) be seriously detrimental to the continuity of the child’s education,

(iv) be likely to be seriously detrimental to order and discipline in the school,

(v) be likely to be seriously detrimental to the educational well-being of pupils attending the school,

(vi) assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at the school, or

(vii) though neither of the tests set out in paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers,

(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child,

(c) if the education authority have already required the child to discontinue attendance at the specified school,

(d) if, where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,

(e) if the specified school is a single sex school (within the meaning of [F1 substitute “paragraph 1(2) of Part 1 of Schedule 11 to the Equality Act 2010]) and the child is not of the sex admitted or taken (under that [F2 paragraph]) to be admitted to the school,

(f) if all of the following conditions apply, namely—

(i) the specified school is not a public school,

(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,

(iii) it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in the specified school, and

(iv) the authority have offered to place the child in the school referred to in paragraph (ii), or

(g) if, where the specified school is a special school, placing the child in the school would breach the requirement in section 15(1) of the 2000 Act.

(2) An education authority may place a child in the specified school notwithstanding sub-paragraph (1)(a) to (e).

(3) The duty imposed by sub-paragraph (1) or, as the case may be, sub-paragraph (2) of paragraph 2 does not apply where the acceptance of a placing request in respect of a child who is resident outwith the catchment area of the specified school would prevent the education authority from retaining reserved places at the specified school or in relation to any particular stage of education at the school.

(4) Nothing in sub-paragraph (3) prevents an education authority from placing a child in the specified school.

(5) In sub-paragraph (3), “reserved places” means such number of places (not exceeding such number or, as the case may be, such percentage of places at the school or relating to the particular stage of education as the Scottish Ministers may by regulations prescribe) as are in the opinion of the education authority reasonably required to accommodate pupils likely to become resident in the catchment area of the school in the period from the time of consideration of the placing request up to and during the year from 1st August to which the placing request relates.

(6) In sub-paragraphs (3) and (5) “catchment area”, in relation to a school, means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of the 1980 Act.

Textual Amendments

F1 Words in Sch. 2 para. 3(1)(e) substituted by 2010 c. 15 Sch. 26 Pt. 2 para. 106(a) (as inserted (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 6 (see S.I. 2010/2317, art. 2))

F2 Words in Sch. 2 para. 3(1)(e) substituted by 2010 c. 15 Sch. 26 Pt. 2 para. 106(b) (as inserted (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 6 (see S.I. 2010/2317, art. 2))

Commencement Information

I1 Sch. 2 para. 3(1)-(4) (6) in force at 14.11.2005 by S.S.I. 2005/564, art. 2

I2 Sch. 2 para. 3(5) in force at 14.11.2005 for specified purposes by S.S.I. 2005/564, art. 2