Together member: Children’s Health Scotland

UNCRC Article 28 (right to education) 

Every child has the right to an education. If a child is ill, has a health condition or disability they must be supported to ensure their right to education is upheld.

“Children want and need adults in school to understand their needs and be there for them to support learning and engagement in the full life of the school, as and when they need it. This is partly about an adult commitment to seeing learning and school from the child’s viewpoint, but also a matter of appropriate resourcing, particularly for children with additional support for learning needs.”

‘What Kind of Scotland?’ (Children’s Parliament, Page 19.)

Children and young people experiencing health challenges are entitled to additional support to achieve the same educational rights as their peers. The Scottish Education Acts of 1980 and 2000 set out the right to “adequate and efficient education” that develops the child “to their fullest potential.” However, some children and young people are not getting the support they need.

A recent Additional Support Needs tribunal, illustrated the case of a child with Type 1 diabetes, who said he was not getting the support he needed to administer insulin at school. Some children and young people have had extended periods of absence because appropriate healthcare has not been made available in school, suggesting deficiencies in staff training and/or resources. A lack of appropriate support not only impacts on the child’s right to health (Article 24), but also on their rights to education (Article 28), non-discrimination (Article 2) and the rights of children with disabilities (Article 23). Periods of absence can also contribute to feelings of isolation and lower self-esteem.

Children and young people with health conditions may meet the criteria for being legally considered as disabled (under the Equality Act 2010) and may be recognised as having additional support for learning needs (under the Additional Support for Learning (Scotland) Act 2004). As such they may be eligible for additional planning, support and protective measures in their education. Scottish Government produced guidance in 2015 and 2017 on children’s education in the context of ill health. The Children and Young People (Scotland) Act 2014, places a duty on Ministers and public bodies to consider the UNCRC and individual-based planning and provision measures set out under Scottish Government’s Getting It Right for Every Child.

Despite the strength of existing legislation, there appears to be a gap between legislation and practice. There is evidence nationally of falling numbers of qualified learning support and other specialist teachers and of classroom and school assistants. These staff work with primary and secondary teachers in supporting pupils with additional support needs of all kinds, including those that are health-related and who may require healthcare in school. Statistics highlight that while the number of pupils with additional support needs more than doubled between 2010-2016 (from 69,587 to 170,329), the number of additional support for learning teachers decreased by 15% in the same period (from 3,518 to 2,990).

Incorporation would be key to closing this gap between legislation and practice. The promotion and development of a human rights culture in all institutions working with and for children and young people is vital to ensuring that all staff understand their duties towards children and young people and uphold these. Incorporation helps ensure the translation of rights into practice, through the promotion of child-rights training, participatory-led approaches, child rights-based budgeting and accountability mechanisms.