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.

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