Centre for Research in Education Inclusion and Diversity (CREID)

When is a right a right?

By May Dunsmuir, President of Additional Support Needs Tribunals for Scotland

May Dunsmuir

From 12 January 2018, children aged between 12 and 15 years will have access to a range of rights under the Education (Additional Support for Learning) (Scotland) Act 2004 [1], which includes the right to make certain types of references to the Tribunal [2]. This is being heralded as the greatest extension of rights to children in Europe.  But when is a right a right?  It seems to me that a right is only a right when you know you have it and when you are as free as possible to exercise it.  Will the new provisions maximise the child’s potential to exercise their rights?


The Scottish Parliament was not persuaded to include a presumption of capacity when extending these rights, believing instead that the added vulnerabilities which might present for a child with additional support needs should mean a different approach.  The first draft of the Education (Scotland) Bill introduced a ‘best interests’ test, which was rejected by a number of agencies, including the Law Society of Scotland, on the basis that this was out of step with developing domestic and international law [3]. The Scottish Parliament replaced this with the two strand test on capacity and wellbeing.

A good fit with international conventions?

In practice, the great majority of children and young people who are the subject of our Tribunal proceedings are those with disabilities.  We must therefore have regard to the UN CRPD[4] which emphasises supported decision making and maximising autonomy for disabled persons.  Article 7 requires provision of age-appropriate assistance to children with disabilities.  Article 7.3 requires that children with disabilities have the right to express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children.  In order to realise that right, children with disabilities should be provided with disability and age-appropriate assistance.  The concept of a disabled person’s rights, will and preferences[5] will apply to those young people aged 16 years and above who have current and wider rights under the 2004 Act.

And what of another, more well-known, international convention – the UN CRC[6]The CRC is the most complete statement of children’s rights and the most widely-ratified international human rights treaty.  Article 12 requires that every child who is capable of forming his or her own views has the right to express those views freely in all matters affecting them – their views being given due weight in accordance with their age and maturity.  Article 12.2 requires that children are entitled to be heard in any judicial proceedings affecting them, which include our Tribunal proceedings, either directly, or through a representative or an appropriate body.

Considering these two Conventions, are we better off with our capacity and wellbeing tests?   Are these robust enough in supporting children with additional support needs to exercise their rights or do they introduce an unnecessary barrier?

The tests

What the tests mean in practice is that an education authority will have to complete an assessment of the child’s capacity and wellbeing every time the child wishes to exercise a relevant right.  When there is a dispute over the decision of the education authority, the child or their parent can make a reference to the Tribunal.  In the majority of cases a legal member will decide this to provide for an efficient decision. 

Where the child wishes to make a CSP[7]-type reference, a Tribunal panel will have to decide the child’s capacity and wellbeing as a preliminary matter, before determining whether the reference is competent.  This differs markedly from the provisions under the Equality Act 2010, where a child within this age range would be presumed to have capacity unless proven otherwise.

The challenge for the Tribunal will be to separate out the question of competence for a reference on the one hand, and the presumption of capacity on the other for a claim, where the two are lodged at the same time in respect of the same child.  Certainly, a decision on the child’s capacity which determines that this is lacking will assist when deciding if the claim is competent, but what of the wellbeing test?  Where a child is found to have capacity but making the reference would be likely to have an adverse effect on their wellbeing[8], this will knock the reference out but would have no bearing on the claim.

Access to justice

The child who makes a competent reference will be a party to the proceedings and have the same status as the education authority, with same rights to lead or produce evidence, to be present during the hearings process and to express their views.

In readiness, I have produced guidance to my members to assist them when determining the tests of capacity and to expand their understanding of how we can hear the views of the child.  We are also developing a children’s section on our website, called ‘needs to learn’, with unique design features, to help children to distinguish us from their school, social work department, health and others and to recognise the Tribunal as an independent judicial body which makes legal decisions, with corresponding rights of review and appeal.

These are exciting times – the challenge and opportunity which lies ahead is to keep the child at the centre.

My voice!

I met with a group of secondary school children with additional support needs earlier this year to ask them how we can hear their views.  Some said that ‘adults don’t always listen’.  Others said that it works better when ‘kids get to get their own point across’, but not when ‘there are a lot of adults talking’.  Our collective challenge as we embrace the impact of these new rights is to stop drowning out children’s voices with our own.


  1. As amended by the Education (Scotland) Act 2016.
  2. From 12 January 2018, the Additional Support Needs Tribunals for Scotland will be transferred into the First-tier Tribunal for Scotland under the Tribunals (Scotland) Act 2014.  The jurisdiction will be known as the Additional Support Needs jurisdiction within the Health and Education Chamber of the First-tier Tribunal for Scotland.
  3. For example, the best interests approach was rejected for the Adults with Incapacity (Scotland) Act 2000.  See Scottish Law Commission Report, paragraph 2.50 – see Paper One, 3.6.
  4. United Nations Convention on the Rights of Persons with Disabilities.
  5. Article 12.4
  6. United Nations Convention on the Rights of the Child
  7. Co-ordinated support plan
  8. Having regard to the SHANARRI indicators.



If you are interested in the work of the tribunal please follow the link to their website for further information: https://www.healthandeducationchamber.scot/

* As of 12 January 2018, the website for the Additional Support Needs Tribunals for Scotland has become www.healthandeducationchamber.scot