And so, we finally get to the core of the guidance, which is the duty itself and – almost as importantly – the three exceptions to that duty. As the guidance notes: “If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person’s wellbeing, in order to reach a conclusion on the application of the three exceptions..”
Section 15 of the Standards in Scotland’s Schools etc Act 2000 reads as follows:
(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.
So, the placement of children in non-special schools is a duty – not “just” a presumption. There are three – and only three – exceptions to that duty. There is a presumption that these exceptions arise only exceptionally – they are “exceptional exceptions”. Even where one or more exceptions apply, the authority may still place the child in a mainstream school (having first taken into account the views of the child and their parents).
In fact, the guidance suggests that children and their parents should be involved at a much earlier stage of consideration and discussion of potential placements. This would certainly be in line with other legal duties on seeking the views of children and parents, including Section 2(2) of the Standards in Scotland’s Schools etc Act 2000.
The guidance suggests that “the onus is on the education authority to demonstrate that the exception should apply.” However, in practice, this onus will often fall on parents seeking to rely on an exception within the context of discussions on placement or a placing request appeal.
This consideration of exceptions and whether they apply, may lead to an uncertainty in any given case as to which placement a child will end up in. This can lead to reduced time available for transition to take place – especially where a placing request appeal has to be determined: “Earliest possible decisions should be made to allow for appropriate planning of any transition to a new educational setting.”
Ability or aptitude
The first exception applies where a mainstream school would not be suited to the ability or aptitude of the child.
The terms “ability and aptitude” are used throughout education law in Scotland, and have been for many years. At no stage, however, have they been defined in statute, and they have rarely been given any serious consideration in case law. The guidance does not attempt to define these terms, but does note that:
“The terms ability and aptitude are narrower than achievement but … when reflecting on achievement, ability and aptitude will be considered.”
There is a parallel in these terms to Article 29 of the UN Convention on the Rights of the Child, which requires States Parties to ensure that education is directed “to the development of the child’s personality, talents and mental and physical abilities to their fullest potential.” This will be of increasing relevance as the UNCRC is incorporated into Scots law.
Viewing the phrase “ability and aptitude” through this lens, we would perhaps align “mental and physical abilities” with “ability” and “personality [and] talents” with “aptitude”. The question posed by this exception then, would be whether a particular placement is suited to developing a child’s abilities (mental and physical) and aptitude (including personality and talents) to their fullest potential or not.
This approach is confirmed by the guidance which states “Achievement is about each and every child and young person fulfilling their potential and if a child or young person is meeting learning targets and has a full experience of school life then they are being well supported by a mainstream education system”. Which seems pretty reasonable to me.
This exception looks at the potential impact of placing a child with addition support needs in a mainstream school on the education of other pupils (who may or may not have additional support needs) with whom they would be educated.
This sits uncomfortably for a number of reasons. The guidance explicitly identifies behaviour which could be disruptive as the main issue here (along with the potential impact of having another adult in the classroom). The idea that a mainstream placement would be the right one for a pupil, who is then rejected from that placement so as not to be too disruptive to others feels all sorts of wrong.
In fairness to the guidance, “incompatible with” is a high bar, and there is a recognition that “consideration of this exception may feel like a rejection of their child by the school” – urging “sensitivity and honesty” as a result.
The reflective questions included within this section of the guidance also urge consideration of the positive impact on the education, wellbeing and wider experience of other children and young people. My understanding is that there is a good evidence base internationally for the beneficial impact of mainstreaming for all pupils. To give just one example, inclusive classroom practice such as adopting a visual timetable is likely to be of benefit for all learners, and not just those with identified additional support needs.
Parents often complain that their child is being placed in a mainstream school as a cost-saving exercise, so it may seem odd that the additional expense of a mainstream placement is one of the exceptions.
When the presumption of mainstreaming was first introduced, Audit Scotland were asked to look at the cost implications. They concluded:
The increase in the number of pupils with SEN in mainstream
schools will lead to increased expenditure, due to:
the capital cost of making schools more accessible;
the transitional costs of rationalisation of the school estate
(sometimes offset by capital receipts);
the revenue costs (largely staffing and training) of more pupils
with SEN in mainstream schools;
providing NHS therapy services to a greater number of schools.
The estimated upper costs of this were £121 Million per annum. However, it is fair to say that there are some assumptions made within the report which probably would not be made if the report were completed today.
Given the current pressures on education budgets, it may well be that the “delicate balancing of differing priorities” will continue to have an impact on the effective implementation of the presumption of mainstreaming.
As Donna Morgan (a legal member within the Health and Education Chamber Tribunals) notes in her own consideration of this guidance: “Resources should be used efficiently and effectively in line with the education authority’s responsibilities to promote equity and equality. Expenditure will also require to be in line with each education authority’s improvement priorities.” – “Provision of Education and the Presumption of Mainstreaming” 2019 SLT (News) 141
This section of the guidance ends with a recognition of the complexity and multi-factorial nature of such decisions. The final sentence is worth quoting from as a guide through this complexity:
The key principle is that the decision that is reached .. must be about meeting the child or young person’s needs, with a continued focus on reaching that individual pupil’s full potential.
This brings us to the end of the guidance, barring the Annexes on the legislative and policy landscape and a list of relevant duties to deciding on the right provision. I will blog one more time on this topic, bringing my thoughts and conclusions together, and finishing the series of posts off at a nice round “10”.