Mainstreaming, I presume … (Part 1)

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.

The Legislation

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.

Image by Gerd Altmann from Pixabay

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