Section 24: Enforcement of statutory duties
152.Section 24 of the Act amends section 70 of the 1980 Act. Currently, section 70(1) of the 1980 Act allows the Scottish Ministers to make an order declaring an education authority, the managers of a school or educational establishment or other persons to be in default of a duty following a complaint by any person that the body concerned has failed to comply with a duty imposed on them by or for the purposes of an education-related enactment. The order may require the body concerned to comply with the relevant duty before a date stated in the order.
153.New subsection (3) provides that, despite subsection (2) (in relation to what an education enactment includes), no order can be made regarding the types of duty failures specified in new subsection (4) (which are under the jurisdiction of the Additional Support Needs Tribunals for Scotland in terms of section 18 of the 2004 Act). These duties only apply to education authorities.
154.Subsection (4)(a) relates to:
a failure by an education authority to prepare a co-ordinated support plan for a child or young person who requires one,
a failure to prepare one by the time required by regulations made under section 11(8)(f)(i) of the 2004 Act,
a failure by an education authority to provide additional support as outlined by section 9(2)(a)(iii) of the 2004 Act,
a failure by an education authority to carry out a review of a co-ordinated support plan as required by section 10(2) of the 2004 Act,
a failure by an education authority to carry out a review of a co-ordinated support plan, within the time required by regulations made under section 11(8)(f)(ii) of the 2004 Act, and
a failure by an education authority to comply with its duties under sections 12(6) and 13 of that Act in respect of a child or young person.
155.Subsection (4)(b) relates to a failure by an education authority in relation to a decision or information mentioned in section 18(3) of the 2004 Act (such as a decision that a child or young person does or does not require a co-ordinated support plan, whether or not a review has taken place). This subsection also relates to a failure by an education authority to include information detailed by section 9(2)(a) of the 2004 Act where a co-ordinated support plan exists.
156.Subsection (4)(c) relates to a failure by the education authority to inform the child or young person, or the child or young person’s parent, of its intention to establish whether a co-ordinated support plan is required, where a request has been received by the education authority to establish if a child or young person requires a co-ordinated support plan, by the time required by regulations under section 11(8) of the 2004 Act. The subsection also relates to a failure by an education authority to inform the child or young person, or the child or young person’s parent, of its decision not to comply with the request within the regulated timescale.
157.Subsection (4)(c) also relates to a failure to establish whether the child or young person requires a co-ordinated support plan within the timescales required by regulations made under section 11(8) of the 2004 Act, where the education authority has informed a child or young person, or a child or young person’s parent, of its intention to establish if the child or young person requires a co-ordinated support plan.
158.Subsection (4)(d) relates to any failure by an education authority under subsection (4)(a), (b) or (c) (as referred to above) which also amounts to a failure to provide adequate and efficient provision for the additional support needs of each child or young person for whose school education it is responsible, or a failure to make appropriate arrangements for keeping the additional support needs of each such child under consideration (as required by section 4 of the 2004 Act).
159.Subsection (5) allows the Scottish Ministers, by regulations, to prescribe a procedure to be followed in relation to the investigation of a complaint, or in relation to the determination as to whether or not an order should be made.
160.Subsection (6) allows for regulations to make provision for different purposes (such as for different timescales to be provided for in relation to different types of complaint). Subsection (7) requires the Scottish Ministers to consult such persons as they consider appropriate before making regulations.
