The right help at the right time in the right place – consultation response

“Scotland’s Strategy for the Learning Provision for Children and Young People with Complex Additional Support Needs 2017-20206 aims to support improved outcomes for children and young people with complex additional support needs through strategic commissioning of national services; with particular focus on the provision of education. This strategy is based on recommendations made in the Doran Review published in November 2012. While this strategy also recognises the critical role played by social services and health in supporting educational outcomes, the strategy is set within the context of The Additional Support for Learning Act 2004.”

The consultation document sought responses to the proposed strategy for children and young people with complex additional support needs.  Below is my response to the consultation.

Responses are sought to this consultation document. I have prepared some comments based on my knowledge and experience of providing legal representation for the families of children and young people with complex additional support needs.

On page 4, I would suggest using the full title of the Act, i.e. “the Education (Additional Support for Learning) (Scotland) Act 2004”.

On page 6, the relevant Act for the criteria for a CSP is the Education (Additional Support for Learning) (Scotland) Act 2004, not the 2009 Act.

On p7, the Doran Review specifies an aspiration that services are delivered, where possible, “within the home community” (this is mirrored on p10 – “locally provided”).

The benefits to the child of having services delivered within their community will be many. However, care must be taken that this terminology is not seen as a reason to avoid choosing an out of authority placement for a child who would benefit from that service. It would be useful to set out what is meant by “locally” and “home community” and to stress that it is not shorthand for the specified area of the education authority in question. I have witnessed the argument being made that a child would benefit from being educated in their local community, when the local authority provision in question is many miles from their home. For a child living in Spean Bridge, Inverness is no more their “home community” than Glasgow is.

The Doran Review also specifies an aspiration that services are inclusive (and again on p10). No-one would argue that inclusion is not of benefit to the child. However, care must be taken that the term inclusion or inclusive does not become shorthand for mainstream school. While the presumption of mainstreaming is legally defined in very mechanical terms, of much more importance is the quality of the experience for the child at the provision in question and how that is perceived. How included does the child feel? How inclusive is the school experience for the child and their family?

A child attending a residential special school away from home may experience that as a wholly inclusive setting, whereas a disabled child attending a mainstream school where she is not permitted to attend school trips and is not selected for the sports teams may find that placement to be the opposite of inclusive. The child’s views should be central to this question.

On page 8, the document states “The decision as to the most appropriate interventions and placement lies with the home education authority ..” But should it rest there? There are problems with the current set-up in which the authority determines the child’s placement, unless overruled by a placing request on appeal.

In my opinion, the ideal would be for a system which successfully places at the nationally funded special schools only those children who need it most / would derive most benefit from that placement.

There is a danger with the current arrangements that children are instead placed at such schools for other reasons, for example:
• because their parents are more persuasive, articulate or knowledgeable than those of other children;
• because their parents’ representatives are skilled in making appeals to the education appeal committee or Additional Support Needs Tribunals as the case may be;
• because with the central funding available, the school is cheaper than more appropriate placements in other authority areas / independent sector;
• because the child or family is at crisis point and suitable social work support is not available, the child being placed for respite reasons, rather than educational ones.

A better system, in my view, would be to nationally fund the GASS schools (not necessarily the same ones as at present) in full to provide specialist places for a defined number of children with particular types of complex / severe additional support needs (as determined by the National Strategic Commissioning Group).

The schools themselves, as centres of excellence in their respective fields, would then be able to select the pupils who would most benefit from the places. Without a shortage of places, there would be no disincentive to transition back to the authority’s own schools. With no financial penalty for doing so, authorities would be free to recommend places for children suited for placement based solely on the child’s additional support needs and wellbeing.

Such a system also removes the need for an expensive, time consuming and stressful dispute resolution process which can damage working relationships and take up valuable resources (time, money, energy) which could otherwise be directed by authorities and parents alike to supporting positive outcomes for the child in question.
The Scottish Government already provides 100% capital and revenue funding for one mainstream grant-aided school (Jordanhill School) and there is no reason why it could not do so with (selected) grant-aided special schools. It would be simple to achieve, would not require any legislative changes, and provides savings elsewhere in the system.

In the first instance this could be piloted in relation to a small number of schools or even a single school.

Also of interest in this context are the proposed changes to the structure of Scottish education under the Scottish Government’s governance review. If the education authority are to remain responsible for additional support needs (cf. http://www.gov.scot/Publications/2017/06/6880/11) while schools acquire new autonomy for the delivery of education and responsibility for closing the attainment gap – then the current system where the authority is basically tied to offering places in its own schools in all but the most extreme cases could be modified.

Does an education authority, responsible for meeting a child’s additional support needs need to be tied to schools in a given area, if all such schools are acting autonomously?

Perhaps an education authority should be given the broader choice of “purchasing” a suitable placement for a child with complex additional support needs, whether that happens to be at a public school, an independent school or a grant-aided school.

On page 10, the Legislative and Policy Context, bullet point 1 should read “Education (Additional Support for Learning) (Scotland) Act 2004”, and bullet point 5 should read “Children and Young People (Scotland) Act 2014”.

Page 11 mentions a “3 year cyclical commissioning plan” which would allow alignment with education authorities’ accessibility strategies and other planning duties.

Page 12 notes the need for “proactive collaborative working” – but the current system does lead to disputes – better collaboration between grant-aided schools and authorities would be of benefit to pupils, but can be difficult to achieve on the back of a process in which parties are led to criticise the other’s provision.

Page 13 talks about the development of relevant professional learning opportunities, but there is a strong case for professional learning requirements. The Requirements for Teachers (Scotland) Regulations 2005 currently require suitable qualifications for those working wholly or mainly with pupils with a visual impairment, a hearing impairment, or a dual sensory impairment. Why is there no equivalent requirement for, say, those working with pupils who have an autistic spectrum disorder?

On page 14, the need for a strong partnership between parents and providers is noted. It can be difficult to engage with parents for special schools as there are often much larger catchment area, parents with additional caring responsibilities etc. Could the Scottish Schools (Parental Involvement) Act 2006 be extended to include grant-aided special schools, or guidance issued on adopting the same system on a non-statutory basis (which could be made a condition of funding)?

I would also observe that there is a need to maintain strong and ongoing local authority engagement where placements are made at grant-aided special schools, particularly in relation to educational psychology services and at the post-school transition stages.

Iain Nisbet
Education Law Consultant

 

Photo credit: (U.S. Air Force photo by Airman 1st Class Jeremy L. Mosier/Released)

http://www.mountainhome.af.mil/News/Article-Display/Article/665693/can-we-take-care-of-you/

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