First of all, apologies for the lack of blogging over the last month or so. A much needed Christmas break has been followed by a hectic start to the year. Thanks for your patience.
So, we are back into a period of educational continuity directions to consider. Educational Continuity (No.6) Direction was issued on 22 December 2020, and took effect as of 28 December 2020. At that point, the plan was for a brief extension to the Christmas holidays followed by a week of remote learning, and the direction would run until 19 January 2021.
Specifically, the direction required education authorities to restrict access to their schools until 18 January 2021. Significant exemptions to this rule were:
- early learning and childcare, which would run from 28 December 2020;
- school age education and childcare for the children of key workers and vulnerable children and young people, which would run from 5 January 2021; and
- remote learning for “pupils who normally attend schools” from 11 to 15 January 2021.
The “in-person provision of education” in schools was to resume from 18 January 2021.
However, the No.6 continuity direction was then revoked and replaced by the No.7 continuity direction as of 9 January 2021. This provided for education authority schools to remain closed, with the following exceptions:
- early learning and childcare;
- school age education and childcare for the children of key workers and vulnerable children and young people; and
- remote learning for pupils from 11 to 29 January 2021 (but see below).
The No.7 direction expires on 1 February 2021, but is likely to be replaced by a very similar (No.8) direction before then. Education authorities are required to plan and prepare for children to resume attendance at schools “at the earliest time it is safe to do so, having regard to any guidance issued by the Scottish Ministers”.
Education authorities are also required to secure the provision of free school meals or “reasonable alternatives” e.g. food / vouchers or cash, for those eligible.
From a legal point of view there is a similar impact on legal duties as in previous directions. Specifically, any failure to comply with a duty or time limit under the following provisions is to be disregarded “to the extent that the failure would be attributable to this Direction”:
- Section 53(2) of the Education (Scotland) Act 1980 (free school lunches) – but see the alternative measures above;
- Section 30(1) of the Education (Scotland) Act 1980 (duty for parents to provide education for their children) insofar as the duty is discharged by sending the child to a public (i.e. local authority) school;
- Section 4(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (duty to make provision for additional support needs);
- any time limits imposed by the 2004 Act or its regulations (except for the placing request deadlines – which have been extended in specific regulations); and
- Section 47(1) of the Children and Young People (Scotland) Act 2014 (duty to provide early learning and childcare) – but see the alternative requirements set out above.
As before, the disregard is limited to failures caused by the direction being in place. As the guidance states:
any failures which cannot be attributed to a Direction would continue to be treated as a failure to comply with that duty.Educational Continuity (No.7) Direction, 8 January 2021: Guidance note
A further educational continuity direction, coming into force on or before 1 February 2021 is expected soon, and I will update once it has been published.