(This note is not part of the Regulations)
These Regulations amend the Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005 (“the 2005 Regulations”).
The Regulations are required following the amendment to section 16(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (asp 4) (“the 2004 Act”) by paragraph 15 of the schedule of the Education (Scotland) Act 2016 (asp 8) (“the 2016 Act”). A new paragraph (aa) was inserted into section 16(1) of the 2004 Act to allow the Scottish Ministers to make provision about the resolution of disputes (concerning the exercise by an education authority of any of their functions under the 2004 Act in relation to a child), between any education authority and any child who has attained the age of 12 years and who the education authority is satisfied has capacity to express a view or make a decision for the purposes of resolving such disputes.
Regulations 2(2) and 2(3) make minor amendments to regulations 2 (interpretation) and 3 (application for referral to dispute resolution) of the 2005 Regulations in consequence of section 16(1)(aa) of the 2004 Act.
Regulation 2(4) inserts a new regulation 3A (assessment of capacity) into the 2005 Regulations, which applies where a child who has attained the age of 12 years makes an application for dispute resolution under regulation 3. In such cases the education authority must make an assessment in accordance with section 3A of the 2004 Act as to whether the child has capacity as respects the resolution of such disputes. This includes consideration of whether involvement in the dispute resolution process would adversely affect the child’s wellbeing (see section 3A(3)(b) and section 3B of the 2004 Act). The education authority must notify the child and the child’s parent of the outcome of their assessment. Regulation 4 of the 2005 Regulations applies only if the education authority are satisfied that the child has capacity.
Regulation 2(5) amends regulation 4 of the 2005 Regulations (Preliminary arrangements) in relation to the timescales within which the education authority must send applicants for dispute resolution either confirmation of acceptance or notice of the education authority’s decision not to proceed. Where the applicant is a child, the education authority must inform the child within 10 working days beginning with the date of the determination made under regulation 3A. In any other case, they must do so within 10 working days from the receipt of the application.
Regulation 2(6) makes a minor amendment to regulation 5(1) of the 2005 Regulations (panel of independent adjudicators) in consequence of section 16(1)(aa) of the 2004 Act.
Regulation 2(7) inserts a new paragraph (2A) into regulation 10 (outcome of review). Under new regulation 10(2A), where the applicant is a child, the education authority must, at the time at which they give notice of their decision and provide the independent adjudicator’s report and recommendation to the child, also give a copy of those documents (without charge) to the child’s parent.