THE record of needs must go. It has served its time and Scotland is now in an ideal position to do much better for children and young people with special educational needs. It was almost 20 years ago that the record entered Scottish educational legislation. It was an essential - one might even say predetermined - step in a historical process. Nor has it been without its achievements.

The philosophical thinking which led to it was good in itself. It helped to take the focus from disabilities and deficits to the positive concept of “special needs” and how these might be addressed. At a more general level, it was a further stage in the continuous process in education and in wider society of giving people with special needs greater recognition.

The record paved the way for social inclusion. There was a deliberate switch in emphasis from the special school to the mainstream. Safeguards ensured needs were adequately assessed, provided for and reviewed, and considerable legal weight was given to parents’ views. For many parents therefore the record was warmly welcomed, especially in situations where needs were clearly not being met.

It was the educational and psychological thinking of the early 1970s which set the scene both for the Warnock report and for the record. “Handicaps” were out and “needs” were in. However, even by the time it appeared on the statute books, the pace of change had been such that the record was already in a sense outdated. Despite its shift from disabilities and handicaps it was still largely rooted in a medical rather than an educational perspective.

Deficits within the child had to be medically examined. The whole model was a static one. It envisaged special needs being suspected by parents or teachers. Formal, legal letters would follow, and then the outside experts - mainly the educational psychologist and the clinical medical officer - would arrive to carry out their respective examinations and recommend if a record should be opened.

The reality, however, is that any child who may require a record will have significant and enduring needs, and these will probably have been fully assessed over a period in a variety of contexts. When the formal letters then arrive to say that a “process of assessment” is about to be undertaken, there may be little or nothing left to assess.

The whole process is cumbersome, time-consuming and excessively formalistic. Thankfully in Scotland we have not gone down the path of a code of practice and SEN tribunals. Nevertheless, the whole supporting apparatus of legal letters and statutory instruments has produced a specialist breed of lawyer. It has also been a drain on scarce resources.

But even granting these difficulties, does the record really have to go? Could it not be updated and refined? There are many who take this view, as indeed the Scottish Executive did in its resonse to the Riddell report on children with severe low incidence disabilities. Scottish ministers did not consider that there was any need to review further the statutory framework in general.

Certainly, it is not difficult in practice to amend the special needs legislation. This has been done at various times since 1981. Anyway, it is hard to see how a significant review of Scottish educational legislation in general can be long delayed. It is based on parents’ responsibilities rather than on children’s rights and there must be an outstanding issue about aligning it to the UN Convention on the Rights of the Child.

However, the reasons the record of needs must go are of a much more fundamental nature. The record is divisive because it creates a division between those with and those without it. The group with a record are a small minority of those with special needs, yet all the legislation and official guidance is still heavily skewed towards this minority.

It is confrontational to the extent that it has to be backed by a whole machinery of appeals and legal provisions covering both the decision whether or not to record and the terms of the record itself. This has often resulted in conflict among parents, professionals and education authorities.

It is inequitable because its distribution across Scotland does not reflect the spread of real need. Needs and disabilities at every level show a marked social class gradient. The poorer the population in socio-economic terms, the higher the level of special need. This is not reflected in the pattern of recording throughout the country, as my analysis of the distribution of the record in more than 2,000 Scottish primary schools at key points through the 1990s has shown. In other words, the system is not working equitably.

Most significantly, the record is discriminatory. It takes a group of children with special needs and places them in a separate legal category. It is this issue of the legal categorisation of children in order to secure their basic right to appropriate education which must ultimately challenge the record of needs. It is an issue of social justice and equality of opportunity.

The record will go. It would be impossible to conclude otherwise. It is in my view merely a question of when. Social inclusion is at the heart of the Scottish Executive’s agenda. There is a stated intention of “earning a world-class reputation for the Scottish education system”. The Parliament has an ideal opportunity to review the legislative framework for special educational needs, to replace it with an inclusive model based on universal rights and to place Scotland once more at the leading edge of educational reform.

Tommy MacKay is director of Psychology Consultancy Services and next month becomes president of the British Psychological Society. His fuller paper, The Record of Needs: Does its distribution across Scotland reflect real need?, is published in the current edition of Education in the North.