The implementation of the Additional Support for Learning Act 2004 has heralded a sea change in the way children with additional needs and their parents are supported in education. But there is one area that gives considerable cause for concern.

One of the most contentious parts of the Act is, arguably, the issue of co-ordinated support plans (CSPs). The idea arose from the view that one of the weaknesses of the existing system of special educational needs (SEN) stemmed from the situation where children needed support from services outwith education. So having a plan which required agencies to co-operate with the education authority in enabling a child to benefit from school education was considered a good idea.

There were, however, difficulties - the major one being how to define in legal terms the criteria which would have to be fulfilled for a child to have a CSP. The same issue had arisen over defining who should have a record of needs under the SEN system, and that was one of the reasons for the variation in rates of opening records of needs across authorities. However, another - and arguably more significant - reason for the variation in recording rates stemmed from the reluctance of education authorities to open records of needs, because of the legal rights they conferred on parents.

During the consultation period that preceded the 2004 Act, there was a clear division of views about whether there should be statutory education plans at all.

Generally, education authorities were not in favour of statutory plans. They viewed them as unnecessary and bureaucratic. Parents, on the other hand, generally wanted to have statutory plans because they felt the plans gave them leverage over education authorities. To have proposed legislation which did not include some form of statutory educational plan would have been seen by parents as taking away powers that they already had, and, therefore, difficult to justify politically. Thus the idea of the CSP was born.

Education authorities, through Cosla, lobbied against CSPs, arguing that if the legislation was passed, some 15 per cent of the school population would have them, which would impose costly bureaucracy on authorities. The Government estimated that between 1 and 1.3 per cent of the school population would have them.

What is the reality? According to the latest 2010 statistics (Pupils in Scotland 2010, Statistical Bulletin) 0.5 per cent of the state school population across Scotland has CSPs, less than half the percentage the Government anticipated and about one-thirtieth of Cosla’s estimate.

We are actually in a worse position with CSPs than we were with records of needs. In the latter case, the highest recording authority had five times more records of needs (as a percentage of the school population) than the lowest recording authority; for CSPs the corresponding figure is 10 times. We do not, of course, expect all authorities to have necessarily the same proportions of CSPs, but having said that, it is difficult to justify why one authority, Dundee City, has proportionately 10 times the number of CSPs that South Lanarkshire has, with only 0.11 per cent of its school population with one.

This raises the issue of whether those education authorities with proportionately low rates of preparing CSPs are breaching their statutory duties under the 2004 Act. The legislation clearly provides that where the legal criteria for preparing a CSP are met, one has to be prepared, even if all provisions are in place without one.

Why would education authorities avoid preparing CSPs? Well the CSP provides parents and young people with legal remedies when they have concerns about whether additional support needs are being met. So one can only conclude that some education authorities want to avoid being legally accountable to parents and young people.

How can we improve performance in this area of provision? First, it is over to each education authority, through its quality assurance procedures, to review its performance and to ensure that it is working effectively within the national framework of legislation and policy. It is clear that a number of authorities are strong in this area but others are not. In particular, authorities also need to make sure that parents are aware of their rights to ask for a CSP and to make a reference to the Additional Support Needs Tribunals for Scotland if they are refused one.

Second, HMI has a role as well. Past performance, however, suggests that it - and, indeed, successive governments - have had little impact, otherwise we would not be in the position we are in now, six years after the 2004 Act came into force. I am afraid that much of the responsibility for ensuring that parents’ and young people’s rights are met will fall to the parents and young people themselves. It was ever thus.

It would be wrong to judge the implementation of the 2004 Act solely on the basis of CSPs. For example, the term “additional support needs” in Scotland is, according to Frederickson and Cline (2009), “arguably the most inclusive of the various terms currently in use .” and all education authorities in Scotland have embraced the philosophy behind the concept of additional support needs. But legislation can only be successful if it is used effectively both by those on whom it imposes duties and by those to whom it accords rights. There is evidence that on both these scores we should be doing better.

Mike Gobson is a former HMI, seconded to head up the Scottish Government’s Support for Learning Division in 2002-09

Mike Gibson, Former head of Support for Learning division, Scottish Government.