Continuing our consideration of the ASL Review Report, the main section of the report begins with “Theme 1: Vision and visibility”. This covers two big issues. One is that there is no defining national agenda or narrative in relation to additional support needs, demonstrated perhaps by their absence from the National Improvement Framework. The second is that the term “additional support needs” continues to be misunderstood and misinterpreted, with the result that particular groups of children and young people who are covered by the law missing out on their rights in practice.
The document is called “Education Scotland: Our Recovery Year 2020/21” which does sound like they are struggling with addiction or something. To educational jargon perhaps?
It is a relatively short and easy to read document, which recognises that the pandemic has had “huge implications for the education system”. They propose therefore to “lead and support the [education] system during a ‘recovery year’ up to June 2021”.
While noting the changed context, there are some things which remain constant, including the commitment to Education Scotland’s four values (which I had not heard of before): integrity, respect, excellence and creativity. I might quibble over whether “excellence” is really a value, but there we are…
There is clearly some concern that we are not out of the woods yet, and so one of the aims is to “increase the system’s resilience to continue to support learning in the event of any future national or local lockdowns.” and one of the ES outcomes listed is that the “education system is responsive and able to move into / out of lockdown smoothly if / as required.”.
To free up capacity, the school inspection programme remains “on hold” though “targeted and risk based inspections” will be carried out as required.
This is a corporate plan document, so it’s fairly high level stuff, and perhaps not wholly surprising to see no mention of the particular impact on pupils with additional support needs – though there is a recognition in the introduction that “the impact of COVID-19 has not been felt equally .. for our different groups of learners”.
As promised, and following a delay (for which I apologise), I finally turn my attention to the independent review of the implementation of Additional Support for Learning legislation in Scotland. The review was chaired by Angela Morgan, and the report, titled “Support for Learning: All our Children and All their Potential” was published in June 2020. A formal response from Scottish Government and COSLA is expected in the Autumn.
There has not been much in the way of commentary on the review, with this interesting article by Alison Brown being a rare example.
I plan to take the same approach as I did with the mainstreaming guidance, which is to consider the report in shorter chunks. This keeps things manageable for me, and allows for a more in-depth analysis of each section. As always, my focus is on the legal implications.
Due to being away on annual leave last week, I didn’t get a chance to blog on the last Educational Continuity Direction, which was the fourth issued by the Scottish Government. It was not hugely exciting in that it mainly continued the previous directions, with some additional bits and bobs about preparing for schools re-opening on 11 August. It also effectively brought to an end the provision of childcare for keyworker and vulnerable children, as of 31 July 2020.
But 5? Five! Well, this is the one we have been waiting for. Issued on Thursday 6th August, but not coming into force until Monday 10th? You know we’ve got something special on our hands.
For one thing, this direction is due to remain in place until 30th August 2020, and – as things stand – “it is not anticipated that a further direction will be required.”
As before, the direction applies only to education authority schools. The main focus is now on the re-opening of schools, and the requirements are set out plainly:
- schools may reopen to pupils from 11th August 2020;
- schools must reopen to pupils by 18th August 2020;
- authorities must prepare contingency plans to be used “immediately in the event of a local coronavirus outbreak”.
There are no specific requirements about steps to be taken for safety, but there is a general objective:
preventing the transmission of coronavirus, the welfare of children and young people and staff, and the importance of continuity of education.
And, as always, education authorities have to have regard to “relevant guidance issued by the Scottish Ministers” (of which there is no shortage).
And, contrary to expectations, there is no continuation of the disregard of failures in certain statutory duties – including key deadlines and duties within the additional support needs legislation. Therefore, the period during which education authorities (and parents) may be able to rely on failures to comply with certain duties being disregarded is limited to the period from 2pm on 21 May 2020 until 1 minute past midnight on 10 August 2020 – and only insofar as it is the restrictions within the direction(s) which have led to the failure.
This means, of course, that in returning schools have all the same duties in place to make adequate and efficient provision for pupils’ additional support needs, and to make reasonable adjustments (including the provision of auxiliary aids and services) to avoid substantial disadvantage to disabled pupils. Under the circumstances, there may well be significant needs to be met, and adjustments to be made. The latest direction has effectively removed any “but the pandemic” excuse for disregarding those duties.
You can access all of the Educational Continuity Directions (and the accompanying guidance documents) on the Scottish Government educational continuity direction page.
So, we have finally reached the end of the Scottish Government’s guidance on the presumption of mainstreaming. Having gone through it in that level of detail, I have obviously had the opportunity to form a view on it.
Reading through the previous nine articles, you will see that I have some criticisms and some concerns in relation to individual sections. However, overall, I would say that this guidance is pretty good.
It is well written and well structured. It provides a useful working definition of inclusive education, through its use of the “four key features of inclusion”. It is a practical document, which you can actually see education staff, parents and young people making use of in tackling the issues which arise. The practitioner questions, in particular, are a really useful approach and identify the right questions without dictating an answer in any individual case. It also valiantly attempts to move the terminology on from “mainstreaming” to “inclusive education / inclusion” while hampered with legislation which bears the crossheading “Requirement for mainstream education”.
So, as I was asked on the facebook page recently …
What’s your stance on presumption of mainstreaming?
A good question.
One of the points to consider here is how well the Scottish legislation (Section 15 of the Standards in Scotland’s Schools etc. Act 2000) implements Scotland’s international obligations (Article 24 of the UN Convention on the Rights of Persons with Disabilities).
But Section 15 was never an attempt to implement the UNCRPD. Scotland’s presumption of mainstreaming law (passed by the Scottish Parliament in 2000) predates the UN Convention (came into force on 3 May 2008) by several years.
At that time, as far as I know, the leading international source for inclusive education was the UNESCO Salamanca Statement (from June 1994), with its call for children with special educational needs to have access to “regular schools” with an inclusive orientation”.
It is a measure of the speed at which progress was made that less than 15 years later, there was a UN Convention requiring all States Parties (including the UK) to ensure that “[p]ersons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;” And it is therefore perhaps not surprising that legislation which predates that Convention does not fully reflect its requirements. Time for a legislative review?
One of the big problems which exists here is with the terminology. A “presumption of mainstreaming” – is almost tailor made to get parents’ backs up. Why are you taking important decisions about my child on the basis of a presumption? Look at them as an individual and make a decision that is best for them!
And look at how it is structured. A duty on the education authority to ensure that children (subject to the three exceptional exceptions) are provided with school education in schools which are not special schools. The assumption was that the presumption of mainstreaming was something which parents could use to ensure access to “regular schools”. Too often, it is something which is imposed on parents against their better wishes. This is compounded where the provision then does not deliver on reassurances made by education personnel (who may not work within the school in question).
What if the legislative language was not about taking children and deciding where to put them – like some kind of low-grade Sorting Hat? What if, instead of a duty to place children in mainstream schools, the education authority had a duty to make its mainstream schools inclusive for all pupils? What if, instead of a duty to put children in local schools, there was a duty to make local schools accessible, inclusive and welcoming for children with disabilities or additional support needs?
The Equality Act 2010 and the (oft-forgotten) accessibility strategies go some way to achieving this – but not far enough. Just this year, I represented a family who could not send their child to the local school for want of an accessible toilet, which the authority refused to install for cost reasons. Besides, there was an accessible school not too far away and we will pay for a taxi for you. This is – as the law stands – perfectly legal.
It is not my role to make suggestions about how we could improve things, but if it were, I might suggest the following:
- Review and revise the legislation so that it better reflects Scotland’s obligations under the UN Convention on the Rights of Persons with Disabilities.
- Strengthen the Accessibility Strategies process so that schools and authorities take it seriously, and they are externally audited (as they used to be).
- Schools should give parents at least an indication of the supports available for their child in advance of attendance. Being told that the child will attend, and then the school will determine the level of support required is not at all reassuring.
- If a child is to attend a mainstream school, the right support and financial backing must be given to allow their full participation in all aspects of the school – after school clubs, school trips etc.
- Children and young people should be at the centre of and involved in decisions about their own education.
- A diversity of provision – including smaller, quieter schools – would be of benefit to a diverse range of learners. Those with additional support needs and those without.
Thanks for sticking with me over the course of this ten part series, and for those who have provided useful comments and feedback.
And so, we finally get to the core of the guidance, which is the duty itself and – almost as importantly – the three exceptions to that duty. As the guidance notes: “If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person’s wellbeing, in order to reach a conclusion on the application of the three exceptions..”
The Scottish Government have issued a third Educational Continuity Direction on 2 July 2020, following the first two, which expired after 21 days. You can read all about the earlier ECDs in my blog posts, Educational Continuity Direction (21 May 2020) and Educational Continuity (No. 2) Direction.
The Educational Continuity (No. 3) Direction is exactly the same as the last one, apart from a couple of changes, and came into force at one minute past midnight, on Thursday 2 July 2020.
The big change in this one is that each education authority is required to plan and prepare for nursery provision (early learning and childcare, or ELC) and out of school care (or OOSC) to resume in educational establishments “no sooner than 15 July, having regard to relevant guidance issued by Scottish Ministers.”
The accompanying guidance suggests that this is likely to take place on 15 July 2020, following the review on transition to Phase 3 on 9 July 2020.
There is a corresponding tweak to the direction to allow staff to attend school premises in order to make preparations for out of school care re-opening. Out of school care guidance is due to be published on 3 July 2020. Finally, the ancillary provision section, which restricts access to educational establishments now includes a specific exception for “the provision of early learning and childcare and out of school care from 15 July 2020, subject to confirmation that such provision may resume being given by the Scottish Ministers no later than 9 July 2020.”
You may remember my comments about the use of the term “children” in the first and second directions. The Educational Continuity Directions used the term “child/children” in the main, but also “pupils” and “young people”. These all have different legal meanings. In some places the term “child” was used where the provisions apply only to children – and not to those aged 16+, but elsewhere, the intention seemed to be that “child” should be read as including young people as well. I am pleased to say that the language has been tightened up in this iteration, with the term “pupil” (which covers all ages) being used more often.
It remains the case that, in order to properly understand what is required, and what permitted, you need to read the direction itself – but also the relevant local and national guidance.
The Scottish Government have issued a second Educational Continuity Direction, following the first, which expired on 10 June 2020. You can read all about that one in my earlier blog post, Educational Continuity Direction (21 May 2020).
The Educational Continuity (No. 2) Direction is exactly the same as the last one, apart from two small but significant changes, and came into force at one minute past midnight, today Thursday 11 June 2020.
Access (by staff in the first place) to educational establishments will be permitted to facilitate and support children’s transitions (including those starting P1 & S1 in August). As of Monday 15 June 2020, this can include attendance of pupils at school (but not at nursery school/classes).
It is perhaps unfortunate that the direction specifies “children’s transitions” and does not include the transitions of young persons (i.e. those aged 16+). The main bulk of transitions will be for those at the nursery/P1 and P7/S1 stages, of course, but there will be some in the senior phase, especially those with additional support needs, who may require transition support at this time as well.
The second change is that, as of now, early learning and childcare can be provided if it is delivered “fully outdoors” having regard to Scottish Government guidance.
This is a similar wording to much of the rest of the direction, in that, in order to properly understand what is required, and what permitted, you need to read not only the direction itself (a slimline 4 pages); but also “relevant guidance issued by the Scottish Ministers”, any documents which set out the “appropriate local arrangements” and the guidance note which accompanies the direction, to work out what guidance is regarded as relevant to which bits.
After nearly two months of schools in Scotland being closed, the Scottish Government have issued a formal direction, providing a legal basis for this state of affairs.
In terms of their powers to do so under Schedule 17 of the Coronavirus Act 2020, Scottish Ministers have issued an Educational Continuity Direction, which came into force at 2pm on Thursday 21 May 2020.
As required by law, in making the direction Scottish Ministers a) had regard to advice regarding the coronavirus from Scotland’s Chief Medical Officer; and b) were satisfied that the direction was a “necessary and proportionate action” in relation to the continued provision of education.
Educational Continuity Direction
So, what does it do?
The Direction applies across Scotland, and to all thirty-two education authorities. There is no mention of independent or grant-aided schools, although the Act certainly allows for a direction to be issued which covers those schools (as well as further and higher education institutions).
Preparing to Re-open Schools
The direction requires education authorities to plan and prepare “for children to resume attendance at schools” – including nursery classes “at the earliest time it is safe to do so”, having regard to Scottish Government guidance. In doing so, support for children at key transition points should be prioritised.
Staff may access schools from June 2020 for the purposes of planning and preparing (including any necessary alterations to premises) for the provision of:
- learning and teaching on school premises and remotely “from August 2020”; and
- early learning and childcare (i.e. nursery provision).
The direction also requires education authorities to support in-home learning “in accordance with appropriate local arrangements”. This also applies (though perhaps to a lesser extent) to children receiving education at schools under the arrangements for vulnerable pupils and children of key workers.
Education authorities must provide education and childcare “pursuant to appropriate local arrangements” for:
- the children of key workers (including NHS and social care staff); and
- vulnerable children (including those eligible for free school meals, with complex additional support needs and at-risk children).
In doing so, the authority must have regard to relevant Scottish Government guidance.
Where the authority is unable to provide free school meals for children eligible for them, they are required to provide reasonable alternatives (e.g. other food and drink, vouchers, or cash).
In making provision or otherwise acting under this Direction, the authority must have regard to “the objective of preventing the transmission of coronavirus, to the welfare of children and young people and staff, and to the importance of continuity of education.”
The direction requires education authorities to restrict access to their schools and nurseries, except as may be required for any of the above purposes, or for:
- providing pupil estimates and grade rankings to the SQA;
- maintaining the buildings and facilities;
- using the buildings and facilities as part of the local authority’s pandemic response.
One very significant effect of the direction is that it means that any failure to comply with a duty or time limit listed below is to be disregarded “to the extent the failure would be attributable to this Direction” –
- Section 53(2) of the Education (Scotland) Act 1980 (free school meals – effectively replaced by the requirements outlined above)
- Section 4(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (provision for additional support needs)
- Any time limits prescribed in or under the 2004 Act (except placing request time limits, which have already been extended) – so CSPs, independent adjudication etc.
- Section 47(1) of the Children and Young People (Scotland) Act 2014 (early learning and childcare)
A parental duty to comply with the duty to education your child (Section 30(1) of the 1980 Act) will be similarly disregarded.
Not that I am one for cross-border comparisons, but the position in England & Wales (as I understand it) is that the special educational needs (SEN) duties have largely been downgraded to a “reasonable endeavours” duty i.e. the LEA/school has a duty to make reasonable endeavours to make the required provision.
Here, the equivalent duty is to be disregarded entirely – although only to the extent that non-compliance was attributable to the direction itself. This is, in fact, stricter than it sounds. As the guidance note points out “That means that any failures which cannot be attributed to a Direction would continue to be treated as a failure to comply with that duty or time limit.”
Duration and Review
The direction took effect at 2pm on Thursday, 21 May 2020 and remains in force for 21 days (or until revoked – if earlier). Effectively it will be reviewed and probably amended as we go on – every 21 days. As the guidance note states: “It will be reviewed no later than 10 June, and it is expected that a further Direction will be made by 10 June to modify, replace or supplement it as appropriate.”
It does leave open the question – on what legal basis were the schools closed during the last two months, and what is the position re: the legal duties during that period?
The latest newsletter is now available to download. Do please read it, share it and subscribe using MailChimp for future editions.
This edition looks at changes to the law brought about as part of the Scottish Government’s response to the Covid-19 pandemic, explaining changes to legislation and the new guidance applying to education. There is a separate “how to” section with some tips in relation to placing requests, given the revised timescales which now apply.
The support spotlight this edition looks at different organisations across the country providing innovative responses to assist families at this difficult time.
Do let me know what you think about the newsletter in the comments.