Heading to Court?

According to The Herald, “New powers for headteachers ‘makes them target for legal action'” – this conclusion being based on submissions made by COSLA in their response to the Empowering Schools consultation by the Scottish Government. Such a move would be condemned by some, and welcomed by others, but is it true?

Possibly, but probably not.

I’ll explain. The consultation is proposing that headteachers take on a raft of new powers, currently exercised by the education authority in relation to the curriculum, staffing and budgets. These new powers would be set out in a “Headteachers’ Charter”. These changes are part of a raft of changes proposed to the governance arrangements for schools, which also include the beefing up of parental involvement and engagement and new bodies called Regional Improvement Collaboratives.

Now, it is true that the idea of devolving legal powers to headteachers raises issues of where legal accountability lies. I have raised similar concerns in my response to the same consultation (more of which on this site, later). It is also true that the proposals do take us closer to the structures seen in England & Wales, where schools have much more autonomy and where legal actions are indeed often brought against the “Headteacher and Governors of Hogwarts School of Witchcraft and Wizardry” (or wherever).

Without seeing the draft Bill, it is difficult to be clear on this, but it does not seem to me that this is what the Scottish Government has in mind. The consultation document is full of caveats which strongly suggest that the legal powers will in fact remain with the local authority who will (ultimately) also have the final say on all of this, when it comes down to it.

The law already allows the delegation of education authority functions to school level, and the Scottish Government’s main issue seems to be that this is not happening enough. And, of course, most of the education authority’s statutory functions are already carried out in practice by teachers, headteachers and other school based personnel. But that is also true of almost all Council functions. Most roads duties are, in fact, implemented by individual Council employees doing inspections, maintenance, repairs etc. – that doesn’t mean you’ll be taking Jack or Jill Council-Employee to court if you hit a pothole!

With the Pupil Equity Funding distributed to individual schools this year, supposedly for headteachers to spend at their discretion, what we actually found was that the money was subject to conditions imposed by Scottish Government and then further guidance and direction (to a greater or lesser extent from authority to authority) from Council HQ. The reality was subtly different from the rhetoric.

My guess is that the Bill will seek to require education authorities to exercise their statutory functions in such a way that passes decision making to headteachers in specific areas without actually conferring legal rights or duties in any meaningful way. The Headteachers’ Charter will have the status of guidance, but the education authorities will ultimately have the final say – and will also be where the buck stops. Until and unless schools are given an autonomous legal status, this is not likely to change. If headteachers are in court, it will be as witnesses to a case brought against the Council, their employers.

Photo Credit: https://www.flickr.com/photos/stevendepolo/4874088075/in/photostream/ (Steven Depolo)

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Ring-fencing the changes

On 10th January 2018, amendments to the Education (Additional Support for Learning) (Scotland) Act 2004 came into force, heralding an extension of rights for Scottish teenagers, said to be unprecedented anywhere in Europe. Pupils aged between 12 and 15 now have the right to ask their school or local authority if they need extra educational support, and the right to have a say in how that is provided, advocacy to support them in expressing their views and legal representation at Tribunal should they need it.

To raise awareness and support children through this process providing advice, advocacy and legal representation, a new children’s service called ‘My Rights, My Say’ has been established. Delivery of this service will be through a partnership of Children in Scotland, Enquire, Partners in Advocacy and Cairn Legal.

This a significant development, and one which has been welcomed across the Scottish education community. Concern has been raised, however, as to how this is to be funded. With statistics published by the Scottish Government at the end of last year showing a 55% increase in pupils with additional support needs since 2012 coupled with a perceived downwards trend in investment, that concern is not surprising.

At the same time, the Scottish education system is going through a period of reform, with schools and Head Teachers to be given more freedom to make decisions at a local level. The Education (Scotland) Bill will make Head Teachers responsible for recruitment of school staff, and other budgetary decisions and deciding on curriculum content. While Councils will still have a role in education (including legal responsibility for additional support needs), newly established Regional Improvement Collaboratives will be created to ‘pool and strengthen resources to support learning and teaching in schools’.

In theory, this will provide an opportunity for schools to tailor additional support, but there is also a risk that the system becomes disjointed, and unable to respond effectively to competing demands on resources.

The current draft budget is being debated in parliament, and the question of additional support for learning funding seems to be an issue that is attracting some interest amongst MSPs. The budget contains an allocation of £10m to be provided to charities that support young people with additional support needs; is also includes £120m allocated to pupil equity funding to help raise attainment. However, the Education and Skills Committee are putting pressure on the Government to ring-fence all additional support needs funding for local authorities.

Ringfencing of additional support needs funding allows Scottish Government to control the sums spent on this area.  However, it does not guarantee that the sum ring-fenced will be sufficient to meet all of the needs within one area, nor does it control how or on what that money is spent.  Further it is not always easy to identify what funding is for additional support.  Much additional support is provided by the class teacher – how is this reflected in any ring-fencing?  Do you take a proportion of the teacher’s salary?

Whatever form the revised governance arrangements for Scottish education finally take, the issues of responsibility for additional support needs, and of funding for additional support will remain – like a fiendish Sudoku puzzle – full of numbers and difficult to solve.

Photo Credit: https://www.flickr.com/photos/01-17-05_t-m-b/2156513671