In this, the fifth part of a series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the third of the “Key features of inclusion” : Achieving.
The latest newsletter is now available to download. Do please read it, share it and subscribe using MailChimp for future editions.
This edition looks back at the significant legal and policy developments in 2019, and forward to the extension of early learning and childcare provision.
The support spotlight this edition is on an innovative work placement project from The Salvesen Mindroom Centre.
Do let me know what you think about the newsletter in the comments.
Johann Lamont MSP recently launched a consultation on a proposed private member’s Bill in the Scottish Parliament. The consultation period for the Disabled Children and Young People (Transitions) (Scotland) Bill ended today (22 January 2020).
At age 16, the aspirations of disabled and non-disabled young people are broadly
the same. By 26, however, disabled people are more likely to be out of work than
their non-disabled peers, and are three times more likely to feel hopeless and to
agree that “Whatever I do has no real effect on what happens to me”.
The Bill, as set out covers three main big ideas:
- A National Transitions Strategy;
- A Scottish Government Minister with special responsibility for transitions; and
- Transitions plans for every child and young person with a disability.
In principle, the Bill addresses some big issues, but I do think the details and structure proposed need some work.
My full consultation response can be found below.
In this, the fourth part of this series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the second of the “Key features of inclusion” : Participating.
The Christmas holidays are now over, and it’s time I got back to the old blogging. In the third part of this series on the new (2019) Guidance on the presumption to provide education in a mainstream setting, I will be looking at the first of the “Key features of inclusion” : Present.
In my earlier post on the Ashdown House School Case, I mentioned in passing, the enforcement powers of the Tribunal in Scotland:
Of course, in Scotland, the President of the Health and Education Chamber has specific powers to monitor the implementation of Tribunal decisions. In the event that such decisions are not implemented, a referral to the Scottish Ministers (who have enforcement powers and mechanisms in relation to both public and independent schools) may be made.
These powers have now been used for the first time since the Additional Support Needs Tribunals for Scotland were first set up (back in 2005). In a recent disability discrimination case, the child (who was the litigant in that case) complained that the education authority in question had not complied with the orders made by the Tribunal within their decision.
Rule 12 of the First-tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 state:
Power to monitor implementation of First-tier Tribunal decisions
12. The Chamber President may, in any case where a decision of the First-tier Tribunal required an authority to do anything, keep under review the authority’s compliance with the decision and, in particular, may—
(a) require the authority to provide information about the authority’s implementation of the First-tier Tribunal decision;
(b) where the Chamber President is not satisfied that the authority is complying with the decision, refer the matter to the Scottish Ministers.
So, while it is true that the Scottish Ministers do have enforcement powers in relation to both public and independent schools, the powers of the President do seem to be limited to decisions affecting education authorities. They would not be available where the responsible body was the proprietor of an independent school. Apologies. I will amend the original article to reflect this.
In this case, however, the orders were made in relation to an education authority and the President, having first considered the authority’s information provided, and thereafter allowed a short period in which to further progress compliance with the decision, considered that the authority had not complied with the decision. She therefore took the unprecedented step of referring the matter to the Scottish Ministers.
So, what will the Scottish Ministers do now? Section 70 of the Education (Scotland) Act 1980 and Section 27(9) to (11) of the Education (Additional Support for Learning) (Scotland) Act 2004 both give the Scottish Ministers powers to require education authorities to take certain action in relation to their functions under the 2004 Act (in the latter case) and in relation to the 1980 Act or “any other enactment relating to education” (in the former).
Given that this case was a claim (under the Equality Act 2010) and not a reference (under the 2004 Act) it seems likely that the Scottish Government will use the Section 70 route. This now has a statutory procedure, set out in the Section 70 (Procedure) (Scotland) Regulations 2017, and would ultimately allow Scottish Ministers to declare the authority to be in default of their duties, and to require them to take specified action to remedy that default.
Given that there is the possibility for this process to be used in relation to most Tribunal decisions, those drafting orders should bear in mind the need for any requirements to be clear and specific – it should be obvious whether a decision has been complied with or not. Orders should also, in appropriate cases, come with time limits. Otherwise it can be difficult to know when a delay (or even an ongoing process) might be viewed as a failure to comply.
This is a significant development, and a reminder to claimants and appellants with a decision in their favour that there is a way in which the implementation of the decision can be monitored and – if necessary – enforced.
It will not have escaped your attention that there is a UK General Election campaign underway at the moment. IPSEA (Independent Provider of Special Education Advice) have released a manifesto asking the next Government to address a “SEND system in crisis”. SEND is an acronym for Special Educational Needs and Disability.
Now, IPSEA is an organisation which does not operate in Scotland, and education is a devolved issue, so this is not directly relevant to the situation north of the border. The education system and the ASL framework in particular has significant differences. However, it remains of interest to see what the position is like elsewhere in the UK, and to compare that to the Scottish situation, in relation to each of IPSEA’s 7 “asks”.
1. A robust system of accountability so that local authorities know there are serious consequences if they flout the law.
The complaint here is that SEN law seems to be disregarded with few consequences for local authorities. In Scotland, there are fairly well developed and reasonably accessible mechanisms for dispute resolution and for putting right things which have gone wrong at the time they do. It is far less straightforward to seek restitution for things which have happened in the past (even in the relatively recent past).
IPSEA mention the ability of a family to pursue a complaint to the Local Government and Social Care Ombudsman (LGSCO) – and indeed there are examples of compensation being recommended by the Ombudsman in SEND cases.
In Scotland, the Scottish Public Services Ombudsman (SPSO) generally refuses complaints related to additional support needs, as these should be dealt with by the Tribunal or other statutory mechanism instead. It can, in theory, recommend compensation, but basically doesn’t. Professional negligence claims in education cases are difficult legally, and vanishingly rare. All in all, it remains the case (as IPSEA state) “so much of the burden is placed on parents when things go wrong”.
One “simple fix” would be to give disabled pupils facing discrimination at school the right to seek compensation (including damages for “injury to feelings”) in the same way that disabled persons facing discrimination in any other field can do, and that pupils facing any other form of discrimination can do. This would require the amendment of the Equality Act 2010, so it is a matter for the UK Government, and therefore this election, even in relation to Scotland.
Why is it – uniquely among victims of unlawful discrimination – that disabled school pupils are prevented from seeking compensation for the wrongs done to them?
2. Better joined up working across education, health and social care, particularly during the EHC needs assessment process.
There is no doubt that this is an issue in Scotland as well. A Co-ordinated Support Plan is required only where there is a need for co-ordination of support, but it can often be difficult to get “appropriate agencies” to contribute, attend meetings etc.
Is there an opportunity for a revised, statutory Child’s Plan scheme (freed from the shackles of the Named Person debacle) to facilitate this joined up working for children and young people with additional support needs?
3. Mandatory SEND law training for all those involved in assessing and meeting the needs of children and young people with SEND. The national qualification for SENCOs should also include a module on the SEND law framework.
I am a lawyer, and often deliver ASL law training to those involved in assessing and meeting the needs of children and young people with additional support needs. So, I clearly think it has its place – I would probably say that it’s not anyone’s top priority though.
The SQA recognise and certify HNC and HND courses in Additional Support Needs. While the HNC is described thus, “Candidates may work or wish to work as an assistant within a mainstream or specialised school”, there is no national or required qualification for Support for Learning Assistants in Scotland.
4. The extended powers of the SEND Tribunal currently being trialed under the national trial for a single route of redress should be made permanent, but also strengthened so that the Tribunal can make binding orders in relation o children and young people’s health and social care needs and provision.
SEND Tribunals are currently in the midst of a two-year national trial. During this time (April 2018 to March 2020), SEND Tribunals can make non-binding recommendations on:
- the health and social care needs specified in EHC plans;
- the health and social care provision specified in EHC plans related to the learning
difficulties or disabilities that result in the child or young person having SEN; and/or
- the social care provision specified in EHC plans that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.
There are no current plans to confer similar powers on the First-tier Tribunal for Scotland (Health and Education Chamber), even on a trial basis. Perhaps the assessment of the trial period in England will prompt consideration of extended powers in Scotland, too.
5. Stronger guidance on SEN Support to ensure there is clarity over how children should be supported at this level and what good quality SEN Support looks like.
It is a difficult task to describe “what good quality SEN Support” looks like as it is, inevitably, going to vary from child to child, even where children share a diagnosis. “Supporting Children’s Learning”, the Code of Practice in Scotland, is being revised at the moment, and already contains some very useful examples illustrating the variety of approaches needed to meet the diversity of needs encompassed by the broad term “additional support needs”.
6. The jurisdiction of the LGSCO should be extended to enable it to investigate complaints about schools who fail to deliver SEN Support.
In Scotland, I feel that the process of independent adjudication effectively fills this role. Regular visitors to the blog will know that I am a fan of this system. The main problem is a simple lack of awareness.
7. Adequate funding to ensure that all children and young people with SEND receive the support they need to meet their individual needs whether that’s under SEN Support or through an Education, Health and Care plan.
It’s hard to argue with a call for “adequate funding” – agreeing what level of funding is actually adequate is another question. One point to note is that any additional funding for SEN Support in England would, in terms of the “Barnett consequentials“, result in a corresponding increase in the Scottish budget, though it would be for the Scottish Government (or potentially Scottish local authorities) to decide whether or not any such increase would go to additional support for learning.
Scottish Parliamentary elections are due to take place in 2021. Perhaps organisations working across the additional support needs sector in Scotland should even now be thinking about a similar manifesto?
In the first part of this series (Mainstreaming, I presume … (Part 1)) I looked at the legislative basis for the presumption of mainstreaming. In this next part, we will be looking at the question of inclusion.
The term “inclusion” is not used in the Standards in Scotland’s Schools etc. Act 2000, or in the Education (Additional Support for Learning) (Scotland) Act 2004. In fairness, it is a difficult concept to define in statutory terms. However, the explanatory notes to the 2000 Act, talk about the presumption of mainstreaming in these terms: “This section aims to establish what is effectively a presumption in favour of ‘mainstream education’ for all children in Scotland. It will strengthen the rights of children with special educational needs to be included alongside their peers in mainstream schools.” So, a right to inclusion has always been the intention of the legislation.
From an international perspective, it is Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which best outlines the position, with its requirement on signatories (including the UK) to “ensure an inclusive education system at all levels”.
It goes on to require:
a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
b) Persons 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;
c) Reasonable accommodation of the individual’s requirements is provided;
d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
Article 24(2), UNCRPD
The UNCRPD is not currently incorporated into UK or Scots law in the same way that the European Convention on Human Rights is, or the UN Convention on the Rights of the Child will be (under current proposals). However, it remains an international obligation (albeit one which the UK Government have accepted with two fairly substantial reservations – see ALLFIE on Article 24). Governments, including the Scottish Government, are required to have regard to the Convention in making law and policy and to take steps to ensure its effective implementation. The Convention can also be referred to by individuals taking legal action, as an aid to the interpretation of existing law (as it is presumed that neither Westminster nor Holyrood Parliaments would legislate in a way which is incompatible with its international obligations).
“A Fairer Scotland for Disabled People” is the Scottish Government’s delivery plan for the UNCRPD to 2021. However, this does not make specific mention of the right to inclusive education, or of Article 24, or of the presumption of mainstreaming. It does make mention of “Disabled people are visible and participating within communities, learning and education, volunteering and employment.” and “Equal opportunities for disabled people in education and employment.” – which captures some of it, I suppose.
The Ministerial Foreword to the guidance, however, could hardly be clearer in its intentions re: inclusion, with the Cabinet Secretary for Education spelling out the benefits of inclusion: “affords all children and young people the opportunity to be a part of a community, boosting their emotional wellbeing and aiding the development of social skills.” as well as being clear on the limitations of the presumption of mainstreaming: “Being present in a mainstream school should not be the primary marker of successful inclusion.” There is also, a very welcome (and child-centred) acknowledgement of the importance of how inclusion is experienced by the individual pupil.
The introduction to the guidance then gets to grips with what is meant by “inclusion”. This is helpful, actually. The “Scottish vision for inclusive education” is pretty vague as you might expect – but usefully links an inclusive approach to the achievement of equity and excellence (the tiresome two watchwords of modern education policy in Scotland).
What is more helpful, in my view, is the identification of four key features of inclusion:
The guidance goes on to consider each of these features in turn, as will I …
Edited (18 November, 2019) following helpful input from A24 Scotland.
In March of this year, the Scottish Government published revised guidance on the presumption of mainstreaming. It is now November, and I have not yet blogged about it (although I did post my consultation response on the draft revised guidance). I think my inaction may be due to the size of the task, so I have decided to break it down into smaller chunks, and deal with it a bit at a time.
We’ll start with what the law says about this. Introduced as an amendment during the passage of the Standards in Scotland’s Schools etc. Act 2000, the ‘presumption of mainstreaming’ is found in Section 15 of that Act.
The phrase ‘presumption of mainstreaming’ is an odd one to start with. It is not used in the legislation at all. The crossheading used in the Act is “Requirement for mainstream education” and the section heading is “Requirement that education be provided in mainstream schools”. In legal terms, there is no such thing as a mainstream school, and so the section itself, as we will see, takes the form of a prohibition on providing education in special schools (with some exceptions).
Interestingly, the guidance itself takes a slightly different title: “Guidance on the presumption to provide education in a mainstream setting“. So, for the same single section we have: mainstream education, mainstream schools and mainstream setting. What the difference is between these three, if any, is not clear.
The Section itself says this:
15 Requirement that education be provided in mainstream schools
(1) Where an education authority, in carrying out their duty to provide school education to a child of school age, provide that education in a school, they shall unless one of the circumstances mentioned in subsection (3) below arises in relation to the child provide it in a school other than a special school.
(2) If a child is under school age, then unless one of the circumstances mentioned in subsection (3) below arises in relation to the child, an education authority shall, where they—
(a) provide school education in a school to the child, provide it in; or
(b) under section 35 of this Act, enter into arrangements for the provision of school education in a school to the child, ensure that the arrangements are such that the education is provided in, a school other than a special school.
(3) The circumstances are, that to provide education for the child in a school other than a special school—
(a) would not be suited to the ability or aptitude of the child;
(b) would be incompatible with the provision of efficient education for the children with whom the child would be educated; or
(c) would result in unreasonable public expenditure being incurred which would not ordinarily be incurred,and it shall be presumed that those circumstances arise only exceptionally.
(4) If one of the circumstances mentioned in subsection (3) above arises, the authority may provide education for the child in question in a school other than a special school; but they shall not do so without taking into account the views of the child and of the child’s parents in that regard.
The legislation is fairly clear on its expectations, and it is fair (to my mind) to describe this as amounting to a ‘presumption’ of mainstreaming.
One interesting quirk of all of this is that the Education (Additional Support for Learning) (Scotland) Act 2004 – which postdated this legislation coming into force – changed the definition of “special school” – which effectively changed the scope of this duty.
Section 29(1) of the 2004 Act, defines ‘special school’ as
(a) a school, or
(b) any class or other unit forming part of a public school which is not itself a special school,
the sole or main purpose of which is to provide education specially suited to the additional support needs of children or young persons selected for attendance at the school, class or (as the case may be) unit by reason of those needs.
So a pupil who attends a Language and Communication Unit (for example) which sits within a mainstream school, is not being educated in a mainstream setting or receiving a mainstream education, according to the Act – regardless of how many opportunities for joining in activities with mainstream peers may be offered.
The Act also does not address situations in which there may be a split placement. Is a pupil who attends a mainstream school part-time and a special school part-time being educated in accordance with this statutory requirement, or not?
Finally, the presumption of mainstreaming appears as a ground of refusal in the legislation concerning placing requests (Schedule 2 of the 2004 Act). Ground for refusal 3(1)(g) applies where the ‘specified school’ (i.e. the one requested by the parent) is a special school, if placing the child in the school would “breach the requirement in section 15(1) of the 2000 Act”.
As set out in the recent Upper Tribunal case of Midlothian Council v. PD, this effectively means that, for a parent to be successful in a placing request for a special school, they will have to show that one or more of the exceptions ( a to c, above) applies.
That more or less covers the legislation. Next up … Inclusion and the presumption.
Since the beginning of 2018, further appeals in additional support needs cases go from the Tribunal to the Upper Tribunal for Scotland. It has taken until now, however, for a case to actually get as far as that and yield a decision for us to look at. Let us set aside for the moment my own personal disappointment that it was not one of my cases, and the fact that it is only a determination of the question of permission to appeal, and see what the case actually says.
The case in question is Midlothian Council v. PD  UT 52 (PDF) and it is an appeal against a decision of the First-tier Tribunal for Scotland (Health and Education Chamber) to grant a placing request appeal in favour of the appellant (the parent of a child with additional support needs).