Potential Energy (Part 10)

The ninth, and final, theme within the ASL Review is “Assurance mechanism and inspection” – which sounds dull, but it extremely important. After all, there is little point in having a review and publishing a report filled with recommendations if no-one is making sure that those recommendations are actually being put into practice and making a difference for children with additional support needs.

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Potential Energy (Part 9)

Theme 8 in the ASL Review is “Understanding Rights”. As a lawyer, and a former law centre lawyer at that, you would expect me to be in favour of a rights-based approach – as indeed I am.

Things have moved on since the Review was published. It notes the Scottish Government’s commitment to incorporation of the UN Convention on the Rights of the Child into Scots law. Now, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill has been passed by the Scottish Parliament. The Bill has been referred to the Supreme Court under section 33 of the Scotland Act 1998 by the Attorney General and the Advocate General for Scotland, which may delay implementation a little, but is unlikely (as I understand it) to have any significant impact on the main operation of the law.

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Manifesto Review – Scottish Parliamentary Elections 2021

I expect it hasn’t escaped your notice that there is an election happening soon. As such, and with an optimistic aspiration that it might encourage people consider more than just that issue when considering how to vote, I will review the main political parties’ manifestos.

This is not a review of the whole of the manifesto of each party, but only those parts which relate to additional support for learning. I am aiming to let you know what each party says and to provide some commentary where appropriate. I am certainly not going to tell you how to vote! Comments on the policies themselves and other ideas you wish were included are very welcome – political points scoring and arguments are not! I am presenting the manifestos in the order in which they were released.

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Case summary – Midlothian Council v PD and PD v Midlothian Council (Upper Tribunal for Scotland)

Back in October 2019, I blogged on a decision on permission to appeal in this case (cf. Case summary – Midlothian Council v. PD). As you’ll remember, permission to appeal was granted and the decision on the appeal has now been published on the Scottish Courts and Tribunals Service website.

The appeal was granted, and the case has been sent back to a new First-tier Tribunal (Health and Education Chamber) to hear the case afresh.

Many of the same issues canvassed at the permission to appeal hearing are covered again in this decision (unsurprisingly). As before, I’ll attempt to cover the main points which might be of more general application.

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Promises, promises

Following the report of the Independent Care Review came The Promise which is effectively the vehicle for driving forwards the actual implementation of the changes required by the review. Yesterday, Plan 21-24 was published.

Plan 21-24 focuses on the period from 1 April 2021 until 31 March 2024. It outlines a set of outcomes that should be concluded by 2024.

There is a lot in the plan, with further detail to follow, but I wanted to take a quick look at what it says about the right to education. There are five specific outcomes which, according to the plan, will be in place “By 2024”:

  1. Care experienced children and young people will receive all they need to thrive at school. There will be no barriers to their engagement with education and schools will know and cherish their care experienced pupils.
  2. School improvement plans will value and recognise the needs of their care experienced pupils with robust tracking of attendance and attainment so that support can be given early.
  3. Care experienced young people will be actively participating in all subjects and extra-curricular activities in schools.
  4. The formal and informal exclusion of care experienced children from education will end.
  5. Schools will support and ensure care experienced young people go on to genuinely positive destinations, such as further education or employment.
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Potential Energy (Part 8)

The section of the ASL Review which covers Theme 7: Relationships and behaviour is on the short side for such an important topic. But that it because it is largely reiterating things which are already well known and have been covered well in recent years by other documents and initiatives, including:

In particular, the review recognises as a “key point of principle” that:

All behaviour is communication.

Included, Engaged and Involved Part 2
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Potential Energy (Part 7)

Following on from the importance placed on relationships and trust as key values and attributes of staff working with children and young people with additional support needs under Theme 5; we now turn to Theme 6: Relationships between Schools and Parents and Carers.

The review begins by affirming the importance of effective working relationships. Where there are “honest and trusting relationships .. characterised by mutual listening and respect” this allows for “sharing views and airing disagreement without conflict.”

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Taking Stock – the Audit Scotland education report

Audit Scotland have just published “Improving outcomes for young people through school education”, a report which started out looking at how effectively the Scottish Government and local authorities were improving outcomes for young people, and ended up considering the impact of the Covid-19 pandemic and the responses to that. The report covers both issues, up to around January 2021.

The report is not focused on additional support needs, and there is much which is to do with the process of collecting data and evidence. Which is important, but probably not what you want to read about. I will therefore take you through the edited highlights as they are relevant to children and young people with additional support needs and their families.

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Potential Energy (Part 6)

With apologies, first of all, for the gap in returning to the ASL Review, let us turn to Theme 5: workforce development and support. It is an obvious point that the success or otherwise of any child’s education is going to rely on the staff (teaching and non-teaching) involved in that education.

The review begins with a recognition that where things are working well for children with additional support needs that is primarily down to committed and determined individual staff members who make things work, in spite of the system (as opposed to because of it). That is quite a depressing thought, but also give some cause for optimism. Think how much better things could be once / if the other recommendations from the report are implemented.

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Educational Continuity (No. 10) Direction

This latest of the educational continuity directions is significantly different from those which have recently preceded it, and so I will cover it in more detail than the last couple. This one runs from one minute past midnight on Saturday 13 March 2021 until one minute to midnight on Good Friday (2 April 2021) – i.e. from now ’til the Easter holidays.

As always, the Scottish Ministers, before issuing the direction, have consulted with the Chief Medical Officer and are satisfied that it is “necessary and proportionate” for the continued provision of education. The direction applies only to education authority provision, but in practice directions have been followed pretty closely by the independent sector as well.

The direction requires education authorities to:

  • plan and prepare for all pupils to return to school full-time “at the earliest time it is safe to do so”;
  • provide school education (during term time) to all primary age pupils in their schools;
  • provide school education (during term time) to all secondary age pupils in their schools – subject to local arrangements and Scottish Government guidance – in particular: children of key workers; S4-S6 pupils studying for a national qualification; and as much provision for other pupils (S1-S3) “as reasonably practicable”;
  • continue providing remote learning (during term time) for secondary age pupils as necessary to ensure that they receive “adequate and efficient school education” – including any school attendance they get; and
  • provide reasonable alternatives where free school meals cannot be provided to those pupils eligible for them.

Education authorities are still, however, required to restrict access to all schools (except nursery schools) other than where access is required for any of the above purposes, or:

  • for permitted use of outdoors sports activities;
  • for the facilitation of a Covid-19 testing programme;
  • for the maintenance of buildings and facilities;
  • for any aspect of the local authority’s response to coronavirus;
  • in relation to Scottish Parliament, local government or UK Parliament elections (if reasonable alternative arrangements cannot be made).

As before, any failure to comply with certain legal duties can be disregarded where the failure is a result of the direction. The duties covered by this rule are:

  • the duty to provide free school lunches (Section 53(2) of the Education (Scotland) Act 1980);
  • the duty on parents to provide education (Section 30(1) of the Education (Scotland) Act 1980);
  • the duty to make adequate and efficient provision for the additional support needs of children and young persons with such needs (Section 4(1) of the Education (Additional Support for Learning) (Scotland) Act 2004); and
  • duties and time limits under the Education (Additional Support for Learning) (Scotland) Act 2004 – other than those relating to placing requests, which are covered in other amendments to those specific regulations.

Finally, in putting all of this into practice, the education authority must have regard to:

  • the objective of preventing the transmission of coronavirus;
  • the welfare of children and young people and staff;
  • the importance of continuity of education; and
  • relevant guidance issued by the Scottish Ministers.

As stated above, this direction will take us up to the Easter holidays. A further direction will presumably be issued thereafter which, all being well, should be less restrictive than this one.