Educational Continuity (No. 9) Direction

At one minute past midnight this morning, the latest educational continuity direction came into force. It will remain in force (unless revoked) until one minute to midnight on 12 March 2021. It may well be formally reviewed at some point prior to that.

As before, the main substance of the direction remains the same (most schools are mostly closed for most pupils), so I will just concentrate on the differences. This time round, the big difference is the provision of in school education for P1-P3 and (on a more restricted basis) S4-S6.

  • having made it clear in the previous direction that education authorities are not required to make provision of remote learning or of education and childcare to those who qualify, outwith normal term time, a further clarification is made here that this is not required on in-service days either;
  • the direction introduces a further exception allowing schools to be used for the facilitation of a Covid-19 testing programme;
  • the direction requires education authority nursery schools and nursery classes to reopen as of 22 February, and for P1 to P3 pupils to return to education authority schools on that same date;
  • in exceptional circumstances, older primary pupils will be permitted to return, where they are in a composite with children in the P1-P3 age range, and there is no reasonable alternative (this might occur with very small schools, I think);
  • for pupils who are in S4-S6, attendance at school is permitted, where necessary for the completion of practical work required for national qualifications;
  • in the meantime, staff are allowed to access schools in order to plan and prepare for the above partial re-opening of schools;

As before, the legal disregards apply (including additional support needs duties and deadlines), but the guidance remains strong on the limited circumstances in which they apply. “It is therefore the continued expectation that authorities deliver against these duties, to the extent that they are not prevented from doing this because of the Direction.” It even goes so far as to suggest that education authorities “will also wish to take their own legal advice in relation to their duties in light of the Direction.”

Case summary – Aberdeen City Council v. LS (Upper Tribunal for Scotland)

There are a number of differences between the systems of education in Scotland and England. One of those is the existence of specialist colleges for young people with learning difficulties and/or disabilities. Another is the tradition of Sixth Form Colleges. The question which arose in this case was whether pupils with additional support needs in Scotland could access this kind of provision elsewhere in the UK.

As you may know, the system of making placing requests includes, for pupils with additional support needs, the ability to make a request for “a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs”.

In this case, the First-tier Tribunal for Scotland (Health and Education Chamber), had determined – as a preliminary issue – that the specialist college in question did count as a “school” under the above definition. This meant that LS, the young person, could make a placing request to the specialist college in question. It also means that a refusal (or deemed refusal) of that placing request could be appealed to the Tribunal.

The Council appealed against this decision. There is quite a lot in the detail of the Upper Tribunal decision (Aberdeen City Council v. LS [2021] UT 1) here, but to provide the broad sweep, I will try to simplify.

  • The Upper Tribunal rejected the appeal points raised by the Council and upheld the original Tribunal’s decision. That is, the UT confirmed that the specialist college in this case could be counted as a school for the purposes of a placing request. The Council argued that it should not be because of the age of the students (16+) and the nature of the institution. That argument was rejected.
  • Lady Poole went on to make a number of observations, aimed at ensuring that Tribunal cases were not subject to unnecessary delays. These observations are just that, but they are likely to be taken seriously by the Health and Education Chamber.

So, what does this mean?

First, senior pupils in Scotland with additional support needs will be able to access a wider range of schools than was previously thought to be the case – including specialist colleges. Whether a particular institution and course do qualify will depend on the facts of the individual case, with the focus being on the nature of the provision being offered (can it be regarded as secondary education?) rather than on the age of their students or how they are regarded within the English system.

It follows that I refuse the appeal on grounds 1 and 2 advanced by ACC. Both are predicated on the argument that placing requests can only be to schools which provide education for pupils of school age (essentially 5-15 year olds). I do not consider this is a requirement of para 2(2)(b) of Schedule 2 when properly interpreted, for reasons set out above. I consider the approach of the FtT, in reading para 2(2)(b) in the way it did and determining whether that test was met on the evidence, was correct.

Lady Poole, Aberdeen City Council v. ACC [2021] UT 1

Second, we can look forward to potential changes in some Tribunal procedures. For example, it may well be that treating matters as a separate preliminary matter becomes less common. It is also likely that where a review and a request for permission to appeal are lodged at the same time (which is quite common) they should be considered at the same time, rather than one after the other. This should be quite helpful in reducing delays within the Tribunal process.

Image by StockSnap from Pixabay

Educational Continuity (No. 8) Direction

At one minute past midnight this morning, the latest educational continuity direction came into force. It will remain in force (unless revoked) until one minute to midnight on 17 February 2021. It is likely that it will be formally reviewed at some point next week.

It is more or less a cut-and-paste job from the previous (No. 7) direction, so I will just concentrate on the few differences.

  • the directions makes it clear that education authorities are not required to make provision of remote learning or of education and childcare to those who qualify, during the half-term holidays; and
  • the direction introduces a further exception allowing schools to be used for elections (if alternative arrangements can’t be made).

The bit allowing for schools to be used as polling stations is interesting, given that the direction itself only lasts until mid-February. This suggests to me that either the Scottish Government are expecting a snap election in the next fortnight, or (more likely) this is laying the ground for contingencies in the event that school closures continue until the Scottish Parliament elections, currently scheduled for … May 2021.