WHAT Wilma Donnelly wants is the same right as every other parent in Scotland to choose the school she believes will provide the best education for her child.

WHAT Wilma Donnelly wants is the same right as every other parent in Scotland to choose the school she believes will provide the best education for her child.

But, following a landmark legal ruling, Mrs Donnelly has been denied that opportunity because her son Mark has cerebral palsy and is registered blind.

According to three law lords sitting at the Court of Session in Edinburgh, under the terms of the 2004 Additional Support for Learning (Scotland) Act, families of children who are classed as having additional needs such as Mark have no right to make a placing request to another local authority.

While the act allows them to approach their council to make such a placing request for them, and they can appeal against the decision if it is refused, they have no right to make a placing request themselves - a right routinely exercised by some 30,000 parents in Scotland every year.

While Cosla, which represents local authorities, argues that councils put the interests of the child first at all times, critics believe the ruling gives too much power to local authorities. Why, they argue, would a local authority which has already decided it is in the best interests of the child to attend a local mainstream school, agree to a placing request for a move to a special school in another council area, which they would have to fund?

It is a decision that has far-reaching implications. There are some 25,000 children in Scotland classed as having additional needs, which covers a wide range of pupils from those who have complex conditions such as autism to those who may be struggling in the classroom because they are being bullied or have had a bereavement in the family.

Under the Court of Session decision none of these families could themselves put in a placing request for their offspring to attend a school in a neighbouring authority.

The ruling also strikes at the heart of frustrations over the government's policy of mainstreaming, where children with physical, emotional or learning difficulties are increasingly being placed in mainstream schools. Where parents previously thought they had the right to an alternative school, the court opinion appears to close off another avenue to them.

Mrs Donnelly, who has been trying to move her son from a mainstream school in West Dunbartonshire to a special school in Glasgow for more than a year, views the decision as a "disgrace".

Mark, 16, from Balloch, is currently a pupil at Dumbarton Academy, a mainstream school which the council believes can cater for his complex needs. However, his mother wants him to go to Ashcraig School in Glasgow, a specialist secondary which caters for pupils with physical or visual impairment, and submitted a placing request last year.

Her request was refused by Glasgow City Council on the grounds that Mark could be taught in a mainstream setting, but when Mrs Donnelly appealed the case to the Court of Session, the judges ruled that there was no provision for her to have made the placing request in the first place.

The opinion of the court, delivered by Lord Macphail, states: "The 2004 act does not make and should not be construed as making any provision, in respect of a child with additional support needs with a co-ordinated support plan, for the making of a placing request to any education authority who are not responsible for the child's education."

Although this conclusion refers to children with a co-ordinated support plan, which deals with those who have more complex needs, the overall judgment would affect all those with additional support needs.

"I think this is a disgrace and clearly discriminates against disabled people. My son should have the same right to choice as every other parent in Scotland," said Mrs Donnelly.

"Despite what the council says, Mark does not fit into a mainstream setting and he needs to be with people at the same level as him. All his contemporaries are sitting Standard Grades and his homework is to learn the alphabet.

"A lot of his lessons are just spent on his own and he has become totally isolated at the school. He has no friends and it is getting worse. He doesn't want to go in in the morning and cries before school, but we cannot do anything about it because the council says he is fine."

The key to the Court of Session decision is the interpretation of a section in the 2004 act which deals with placing requests.

The section states that where the parent of a child having additional support needs makes a placing request "to an education authority" it is the duty of the authority to place the child accordingly. Lawyers representing Mrs Donnelly argued that the section referred to any local authority in Scotland, but the law lords ruled that it referred only to the home authority.

Iain Nisbet, a solicitor with the Govan Law Centre, whose education law unit is representing Mrs Donnelly, said he intended to appeal to the House of Lords to argue that the interpretation by the Court of Session was either wrong or, if correct, was the result of an oversight in the original legislation. If they don't rule in his favour he believes there is a need to change the law to protect choice for all families.

"This judgment will mean that many parents who expected their children to attend schools across council boundaries will not be allowed to go and it seems particularly unfair given that the rest of the population will continue to enjoy that right," he said.

"If the House of Lords rules against us then I believe there is a need for an urgent legislative change in Scotland to establish those rights of a placing request to all parents and end this discrimination."

A spokesman for the National Autistic Society agreed. "It's crucial that there is a structure in place to enable parents of children with complex needs to access the right support for their children, whether or not this is within their local authority area."

Sally Cavers, senior manager with Enquire, an advisory service on additional support for learning managed by the charity Children in Scotland, added: "If this means families are at a disadvantage then it does not meet with the intentions of the act which was to give these children the ability to develop to their full potential."

The main aims of the 2004 act

The Education (Additional Support for Learning) (Scotland) Act 2004 makes provision for extra support for school pupils who have additional support needs.

Passed on April 1, 2004, one of the main provisions of the act was to replace the concept of "special educational needs" with that of "additional support needs".

Children are deemed to have additional support needs if they are unable to benefit from the school education provided without the provision of additional support.

The act places a duty on the local authority to make adequate and efficient provision for children's additional needs subject to its powers and what is "practicable at a reasonable cost".

Councils must ask other agencies such as health boards for help which must be provided unless the request is incompatible with their own statutory duties.

The act replaced the old system of Records of Needs for children with complex needs with a new type of individualised plan known as a Co-ordinated Support Plan (CSP).

CSPs are available to children with complex additional needs which involve other agencies outside the sphere of education.

Because the legislation is relatively new, the Scottish Government is to carry out a review of the act to see how it is working early next year.