Steiner_um_1905

State funding for “independent” schools?

An interesting development. Today’s Herald carries an article on the Glasgow Steiner School seeking direct state funding, following the fire which effectively closed the school back in 2013.  (“Steiner school hit by blaze in landmark bid for state funding”, 20 June 2016)

As the article points out, this is the latest group to seek direct Scottish Government funding for their school, following in the well documented footsteps of St. Joseph’s Primary School in Milngavie.

The Scottish Government already have all of the powers they need to grant the Steiner School’s request.  Section 73 of the Education (Scotland) Act 1980 allows the Scottish Ministers, by regulation, to pay grants to the managers of any educational establishment, and to “any other persons” for providing education or educational services. Section 74(1) allow conditions to be imposed on such grant payments.  This is how Jordanhill School is funded.

No primary legislation would be required. It would be a politically huge step to take, no doubt. Especially in the case of the Steiner School which, as I understand it, runs a different curriculum (i.e. not Curriculum for Excellence).

From a legal perspective, there are two points to consider here.

The first is that both St. Joseph’s and the Glasgow Steiner School are making, essentially the same argument that St. Mary’s Episcopal Primary School made in the case of Dove v. Scottish Ministers back in 2001/02.

The argument is essentially this – the Scottish Ministers directly fund Jordanhill School as a mainstream “grant-aided” school; so why not us? Jordanhill is an anomoly within the system, and maybe some day it will be altered – but until then it can be explained away as a historical curiosity, unique circumstances etc.

Funding other schools directly definitely would open the floodgates, the “why not us?” case becoming more and more difficult to answer each time an exception is made. Maybe the Scottish Government are keen to have more autonomous grant-aided schools but, if so, it should surely be on the basis of a national policy and one which is accessible to all schools who might choose to opt in, not just those which the best PR skills.

From that point of view, and even if this were being done on a “pilot” basis, the proposals have very different implications.  Fund the Steiner school, and the Scottish Government is allowing parents at an independent school to depart from Curriculum for Excellence, and funding them to do so.  Fund St. Joseph’s in Milngavie, and what does that do to East Dunbartonshire Council’s primary school estate planning?

Secondly, in the background, the Scottish Government is still working through the implementation of the Doran Review recommendations – part of which may have a major implication for the seven special schools in Scotland which currently receive direct grant funding from Scottish Government.

Introducing new mechanisms for direct grant funding from Scottish Government in the middle of that process would be complicated to say the least.  It would be problematic to try and insist that any new system could only apply to mainstream schools.  And, if the Scottish Government were open to encouraging parent controlled schools which may take different approaches to education, then projects like the Stoa School in Edinburgh may well be very interested indeed.

While superficially attractive, moves to direct funding of schools by Scottish Government would create more problems than it solves.  Without major structural (and legislative) changes to the way in which education is managed and delivered in Scotland, it is basically a non-starter.

Photo of Rudolf Steiner, 1905 (public domain) https://en.wikipedia.org/wiki/Waldorf_education#/media/File:Steiner_um_1905.jpg

spier27s_school_register

Term-time holidays – the law in Scotland

Big news in education law as Jon Platt, a father from the Isle of White, was cleared of a criminal offence in terms of Section 444(1) of the Education Act 1996.  Having been acquitted by a Magistrate following a seven day absence for a family holiday to Florida, the High Court agreed that the court was entitled to look at the overall record of attendance in determining whether a child had failed to attend school regularly.

Is this decision of relevance to education authorities in Scotland?  In a word, yes.  The legislation is worded in similar terms.  An offence arises in England or Wales where a pupil “fails to attend regularly at the school” – though a defence of “reasonable justification” may arise in some circumstances.  In terms of Section 35(1) of the Education (Scotland) Act 1980, the offence occurs where a child of school age “fails without reasonable excuse to attend regularly at the said school”.

Scottish Office guidance on school attendance was formerly that up to two weeks of family holiday could be regarded as an authorised absence, where attendance was otherwise good.  However, in 2007 the Scottish Government published Included, Engaged and Involved Part 1: Attendance in Scottish Schools, which took a distinctly harder line.

3.6 Family holidays during term time

Following consultation with headteachers, it has been clarified that family holidays should not be recorded as authorised absence, except in exceptional domestic circumstances, where a family needs time together to recover from distress, or where a parent’s employment is of a nature where school-holiday leave cannot be accommodated ( e.g. armed services or emergency services). It is for local authorities and schools to judge when these circumstances apply and authorise absence, accordingly.

The categorisation of most term-time holidays as unauthorised absence has been a contentious issue for some families, many of whom are concerned at the higher cost of holidays during school holiday periods. The Scottish Government has no control over the pricing decisions of holiday companies or flight operators. Our main focus is to encourage parents and pupils to recognise the value of learning and the pitfalls of disrupting learning for the pupil, the rest of the class and the teacher. It is for schools and education authorities to judge what sanctions, if any, they may wish to apply to unauthorised absence due to holidays.

Note that this change to the guidance, which effectively seeks to alter who can be prosecuted for a criminal offence was done without any alteration to the law.  Similar changes were attempted in a similar way south of the border, and now it seems that these efforts have been undone by the courts in dramatic fashion.

Despite differences in the systems, in my view, it is very likely that courts in Scotland would adopt a similar approach to the interpretation of the phrase “attend regularly” – although it should be noted (anecdotally) that the Scottish Courts already take a more lenient approach to sentencing in such cases than the English Courts which have jailed at least one parent for her child’s non-attendance.

It is all but certain that solicitors representing parents being prosecuted in Scotland will be making this argument in appropriate cases from now on.  At the time of writing, the Scottish Government have not responded formally to the judgement, but the Department of Education in Whitehall are already talking about changes to the law.  At the very least, north of the border, education authorities may wish to consider carefully which cases are brought before the courts in future.

The author, Iain Nisbet, is a member of the Attendance Council for his local area.

CSP-Renfrew

Educational planning: CSP vs. Child’s Plan

In August 2016, Part 5 of the Children and Young People (Scotland) Act 2014 will come into force, putting the “Child’s Plan” on a statutory footing.  In some quarters, this is seen as the cue to put away all those pesky Co-ordinated Support Plans (CSPs) in a drawer, lock it, and move on …

However, this is not the legal position.  In fact, the new law does not alter the status or effect of the CSP at all.  Article 3(2)(b)(ii) of the Child’s Plan (Scotland) Order 2016 require a Child’s Plan to record all the information set out in a CSP which is “a record of any wellbeing needs which the child has and any action taken or to be taken to address those needs” – or, in other words, most of it. Article 7(9)(b) effectively ties the review cycle of a Child’s Plan to that of the CSP.

And despite these (and other) legislative developments within this time, the CSP remains an important part of the education policy. The Scottish Government recently listed their
‘continued commitment’ to the additional support for learning legislative framework as the key commitment in the field of education, in their Draft Delivery Plan (2016–2020) for the UN Convention on the Rights of Persons with Disabilities.

From a dispute resolution point of view, for all its faults, the system of mediation, independent adjudication and the Additional Support Needs Tribunals for Scotland provide a more robust system than the system of complaints set up under the Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016.

Therefore, it would seem that there is life in the old CSP yet…

hand-and-mouse

Reasonable adjustments for disabled pupils

Some pupils with additional support needs are also disabled and, as such, enjoy the additional protections of the Equality Act 2010.

One of these additional protections is the reasonable adjustments duty.

The duty to make reasonable adjustments includes three requirements:

  1. adjustments to avoid substantial disadvantage arising from a provision, criterion or practice (“PCP”);
  2. adjustments to avoid substantial disadvantage from the physical features of a building;
  3. adjustments to avoid substantial disadvantage by providing an auxiliary aid (or auxiliary service).

The second requirement does not apply to schools. In Scotland, the Education (Disability Strategies and Pupils Educational Records) (Scotland) Act 2002 apply instead. This Act requires responsible bodies for schools to draft an accessibility strategy, which sets out planned improvements to the physical accessibility of the school (among other things). Cf. “Planning improvements for disabled pupils’ access to education: Guidance for education authorities, independent and grant-aided schools” (Scottish Government Guidance).

A failure to comply with a reasonable adjustments duty in relation to any disabled person amounts to unlawful discrimination.

The reasonable adjustments duty for schools applies in relation to:

  1. deciding who is admitted to the school; and
  2. providing education or access to a “benefit, facility or service” (this might include school lunches, uniform policy, playtimes, out of school trips, after-school clubs, assemblies, discipline etc. etc.).

In deciding whether an adjustment would be reasonable or not, you should read and consider the Technical Guidance for schools in Scotland, which gives a list of factors to bear in mind together with several useful examples.

Without intending to be exhaustive, and in no particular order, the following are some of the factors that are likely to be taken into account when considering what adjustments it is reasonable for a school to have to make:

  • The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;
  • The extent to which support will be provided to the pupil under the Education (Additional Support for Learning) (Scotland) Act 2004, as amended;
  • The resources of the school and the availability of financial or other assistance;
  • The financial and other costs of making the adjustment;
  • The practicability of the adjustment;
  • The effect of the disability on the individual;
  • Health and safety requirements;
  • The need to maintain academic, musical, sporting and other standards;
  • The interests of other pupils and prospective pupils.

Technical Guidance (6.29)

Example:
A pupil with learning difficulties is excluded for repeatedly getting up from his seat during lessons and disrupting other pupils. It is the school’s policy that repeated disruptive behaviour is punished by exclusion. The school is under a duty to make reasonable adjustments to its policy, which might mean disregarding some of the disruptive behaviour and working with the pupil to find a way in which to help him to remain in his seat during lessons.
Technical Guidance (4.12)

Example:
A visually impaired child requires printed handouts to be prepared in 24pt font or larger. This can easily be accommodated by ensuring that fonts are reset to this size prior to any documentation being printed.
Technical Guidance (6.45)

A school’s duty to make reasonable adjustments is often referred to as an “anticipatory duty” and it is owed to disabled pupils generally. Therefore, schools must plan ahead and consider in advance what disabled pupils may require, rather than simply responding to difficulties as they arise.

wellbeing-wheel

GIRFEC – understanding the Code …

Much of the Children and Young People (Scotland) Act 2014 is due to come into force this autumn (subject to anything the Supreme Court may have to say in the case of Christian Institute & Ors v. Scottish Ministers). This has been characterised by some as GIRFEC (Getting It Right For Every Child) becoming law.

However, there are at least some parts of the GIRFEC framework which already carry (some) legal weight, by virtue of the Education (Additional Support for Learning) (Scotland) Act 2004.  That Act (in section 27) requires the Scottish Ministers to prepare a statutory Code of Practice (currently in its 2nd edition), to which education authorities and other appropriate agencies must have regard in carrying out their functions.

The Code has a lot to say about GIRFEC already (and it was published in 2010).  Here’s some of the highlights:

“Effective assessment, planning, action and review, consistent with the values and principles of Curriculum for Excellence, Getting it right for every child, the Early Years Framework and the provisions of this Act, involve:

  • taking a holistic view of children and young people and their circumstances, and what they need to grow and develop and achieve their potential;
  • seeking, taking account of and noting the views of children, parents and young people and involving them fully in the assessment process and in finding solutions;
  • ensuring that parents, children and young people, understand, and are asked to agree to, the aims of any assessment and the purposes of any action proposed ensuring that assessment is an ongoing, integrated process of gathering and evaluating information, planning, providing for, and reviewing, services for the individual;
  • adopting the least intrusive and most effective course of action affecting the lives of children, young people and families;
  • taking into account issues of diversity and equality and ensuring that outcomes do not discriminate against children, young people and their families. This includes not discriminating on grounds of race, disability, gender, sexual orientation, language, culture, religion or belief, and age.
  • working in partnership with, and building the capacity of, parents to secure education for their children and to promote their child‘s health and wellbeing, development and welfare.”

“Those with additional support needs comprise a broad group of children and young people whose needs require to be identified, understood and addressed to ensure that they benefit from school education. Education authorities need to play their part in ensuring that there is effective communication, collaboration and integrated assessment, planning, action and review when other agencies are involved.”

“Where lead professionals are working with children or young people with additional support needs then, in addition to the points set out below, they also have a responsibility to be familiar with the Act and, in particular, to ensure that parents and young people themselves are aware of their rights when they have concerns or disagreements about the provisions being made under the Act.”

“Where a range of individual assessments is required, the education authority should, in line with Getting it right for every child practice, seek to bring these within one assessment process to avoid duplication and placing the child or young person, and his/her family, under stress. This will involve ensuring that there is a lead professional co-ordinating the process when the assessments involve multi-professional staff. The ultimate aim will be to bring the assessments and their conclusions together into a single plan of action.”

“In all circumstances, planning should aim to ensure the effective co-ordination of support, including parents and the child or young person, so that it is clear what the intended learning outcomes are and what additional support is required to achieve these. Every opportunity should be taken to ensure that there is an integrated plan of action for a child or young person where more than one agency or service is involved and the aim should be to have one plan in line with the principles of Getting it right for every child.”

boywriting

When is school not at school?

Section 1 of the Standards in Scotland’s Schools etc. Act 2000 says that every child of school age (roughly: ages 5-16) has the right to “school education” by, or arranged by, an education authority.

However, not every child of school age receives education by way of education at a school or other establishment.

Some children are, of course, home educated.  But even where the education authority remain responsible for a child’s school education, the law requiring “school education” does not necessarily imply that the education will be provided in a school.

For example, in Section 3(2) of the 2000 Act, education authorities are obliged to secure improvement in school education provided in their schools; and in s.3(3), those duties “shall apply also in relation to school education which is provided in pursuance of any arrangements made, or entered into, by an education authority under (a) section 14 of the 1980 Act; or (b) section 35 of this Act.” that is education while excluded from school or unable to attend school due to ill-health; and nursery education provided by partnership nurseries.

Section 16 of the 2000 Act forbids corporal punishment given by, or on the authority of, a member of staff to “a pupil .. for whom school education is provided by an education authority (whether or not at a school);”

In the Explanatory Notes to the Standards in Scotland’s Schools etc. Act 2000, it is explained that “Section 16(1)(a) covers school education provided by an education authority, whether at school or elsewhere, for example at home or in hospital.”

Section 277 of the Mental Health (Care & Treatment) (Scotland) Act 2003, amends Section 14 of the Education (Scotland) Act 1980 to require education authorities to make arrangements for “school education” for children unable to attend school because they are subject to compulsory measures authorised by the 2003 Act or, in consequence of their mental disorder, by the Criminal Procedure (Scotland) 1995 Act.

The legal definitions of “pupil”, “primary education” and “secondary education”, found in the 1980 Act, do not necessarily require attendance at school or any other establishment.

This is of relevance in the context of new duties to be introduced by Section 21 of the Education (Scotland) Act 2016.  Section 21 introduces a new Section 2ZA (“Learning hours”) which requires education authorities and grant-aided schools to provide a minimum number of learning hours per annum for every pupil.

Section 2ZA(12) defines “learning hours” as “hours of school education of such type as may be prescribed”.  Much may depend on the precise form of the regulations which are to follow, but it is worth noting that this definition does not necessarily require all (or any) of these learning hours to take place at school.

Additional Support Needs

boydrawing
Freeimages.com / Viviane Stonoga

This is the first post on this new blog, which takes a look at legal issues relating to additional support.  What better place to begin then, than Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004, as amended?

Specifically, we need to know what is meant by “additional support needs”? This is an important question as various rights and duties arise in law where a child or young person has additional support needs.

However, whether a child or young person has additional support needs is a question of fact, and does not rely on whether the education authority have formally assessed the child / YP or not.(cf. Parents of Child J v. Dumfries & Galloway Council 2015 SLT (Sh Ct) 253)

A child or young person is said to have additional support needs where “for whatever reason” they require additional support in order to benefit from school education (see below for more on the term “school education”).

The Code of Practice (“Supporting Children’s Learning”) suggests the following as examples of factors which may give rise to additional support needs:

  • having English as an additional language;
  • being a young carer;
  • being looked after by the local authority;
  • having a sensory impairment;
  • having a specific language impairment;
  • having other learning difficulties;
  • being bullied;
  • children with behavioural difficulties;
  • “gifted” or able pupils (e.g. RB v. The Highland Council 2007 SLT 844)

Since the 2009 Act, looked after children are presumed in law to have additional support needs, unless the authority have formally assessed them as having no such needs.  Where a looked after child has additional support needs, the authority must formally determine whether they require a Co-ordinated Support Plan.

It is worth reminding ourselves how broad the phrase “additional support needs” is. Also, note that a child or young person may have additional support needs due to a variety of factors.

“Additional support” is defined as provision which is additional or different to the provision normally made for pupils of the same age in local mainstream schools.

References to school education include, in particular, education which is “directed to the development of the personality, talents and mental and physical abilities of that child or young person to their fullest potential.”

That wording is taken directly from Article 29 of the UN Convention on the Rights of the Child, and underlines that the provision to be made for children with additional support needs should be made with a view to significant educational progression – including development in areas which would not traditionally be regarded as academic.