Governance Review – Consultation Response

Response to Consultation
“Empowering Teachers, Parents and Communities to Achieve Excellence and Equity in Education” – A Governance Review

Introduction

1. My purpose in responding is to highlight certain legal issues which arise. It is hoped that these comments may be of assistance to those considering these matters.

2. Education law in Scotland already affords education authorities and Scottish Ministers a degree of flexibility in terms of governance arrangements. For example, section 24 of the Education (Scotland) Act 1980 allows for education authorities to make payments to independent schools or to other bodies providing education or education services, allowing authorities to procure educational services from third party providers in the voluntary sector. The section contains a mechanism for allowing authority representation on the boards or other governing bodies of such schools. Similarly, section 73 allows the Scottish Ministers to make payment of grants to schools (and other educational establishments) for the provision of education or education services. Section 74 allows such payments to be made subject to conditions. This is how Jordanhill School is funded, for example. Seven grant-aided special schools are also funded in this way, although this system is currently under review, following the Doran Review.

3. Scottish Government have a commitment to “empower schools and decentralise management and support through school clusters and the creation of new educational regions.” The creation of new educational regions will assist in delivering decentralisation if the bodies are taking on existing Scottish Ministers functions. If the proposal, however, is that educational regions take on local government functions, then that would be a process of centralisation, not decentralisation.

4. The consultation document contains “a presumption that decisions about individual children’s learning and school life should be taken at a school level”. However, section 28 of the 1980 Act sets out the general principle that children are to be educated “in accordance with the wishes of their parents” (subject to important caveats as to suitable instruction and public expenditure). The presumption in law is that decisions about individual children’s learning should be taken by their parents – and not by the school. In any event, a legal presumption of this sort – if that is what is being suggested – would require a significant structural alteration. At present, local authority schools do not have a separate legal identity – they exist only as part of the authority. This would probably need to change if this presumption were to be given legal force. There would also need to be clarity as to what is meant by “at school level” – does this mean by the Head Teacher acting alone? Or by a board or governors? Or something else?

5. The consultation document’s list of organisations involved in the governance of education does not take into account the UK context. There are pieces of UK legislation which significantly affect Scottish education, and which need to be considered. The best example would be the Equality Act 2010 – which is of particular relevance to disabled pupils and those with other protected characteristics. At present the education authority is the “responsible body” in terms of equality law for all public schools. Any proposed change to this positon would require an amendment to this Westminster legislation. That same list does not mention independent special schools or grant-aided special schools, which educate a number of children and young persons with additional support needs for whose school education the authority remain responsible. The impact of any changes to governance arrangements on pupils educated in these contexts will need to be carefully considered.

6. The emphasis on accountability in the OECD summary re: effective governance and successful reform is welcome. The current picture of legal accountability for education duties is disparate and inconsistent, with accessible remedies available in some aspects and none at all in others. The pending establishment of an education chamber within the Scottish Tribunals is an opportunity to have a single route of accountability available for children, parents and young people in relation to their education.

Empowering teachers, practitioners, parents, schools and communities

7. At p9, the document states “We want to see more decisions about school life being driven by schools themselves.” As I mention above, this should not be allowed to override the existing legislative general principle that children are to be educated in accordance with the wishes of the parents.

8. As the document goes on to say, devolved school management already exists and can be used to ensure that some management and funding decisions are already taken at that level.

9. The document goes on to propose that legal responsibilities for delivering education and raising standards should be extended to schools (and teachers / head teachers?). To do so would require each school to have its own separate legal identity. The most likely form would be that the school would be constituted and have a managing or governing board of some sort. Parent Councils as currently legislated for, would not be able to fulfil this role (still less, Parent Forums) although legislative changes could be made to allow this. There would also be required legislation governing the relationship between these more autonomous schools and the education authority, the proposed educational regions and the Scottish Ministers. This is no small task and would involve a fundamental rewrite of much of Scots education law. The form of the governing bodies would require careful thought as well. Currently education authorities are subject to democratic oversight and control through local government elections. Even if new boards of governors are to be made by election, the reality is that many schools struggle to get sufficient volunteers for a full Parent Council, let alone to make elections worthwhile. It may be more difficult to attract volunteers in the event that legal accountability is a feature of such bodies.

10. There can also be real benefits to having decisions taken on a strategic basis at education authority level, and unintended consequences which may arise from devolving powers to schools. It has been measures taken by education authorities which have been responsible for the reduction in the numbers of exclusions, rather than (on the whole) schools acting individually. Duties like the duty to provide alternative education where a pupil has been permanently excluded from a school would require to remain at authority level as well. To give another example, the duty to plan for improvements to school accessibility by way of an Accessibility Strategy is one which lies with the education authority. There is one plan for all the authority’s schools. The guidance allows for authorities to specialise, to have one school which is particularly accessible for pupils with a particular disability, which allows for a more efficient use of resources. If each school was to be responsible for these duties directly, then this concentration of supports and resources would not be possible.

11. The empowerment of children and young people within schools is not only beneficial, it is also an obligation in terms of the UN Convention on the Rights of the Child. Some local government education committees already include pupil representation, and a statutory requirement to pupil membership/representation (alongside parental membership) of schools’ governing bodies (whatever form they take) would be a real step forward in this area.

12. Devolving decision making to “teachers, schools and communities” sounds like a proposal for new boards of governors with staff and parent or community membership or input. If that is the case, then the devolution is actually to the board or other similar body – and the devolution to parents etc. only then works so long as the board is representative of the wider parent body / staff group / community. Support would be needed to encourage and facilitate involvement, and to ensure that boards or similar bodies are both representative and diverse.

Strengthening ‘the middle’ – how teachers, practitioners, schools and other local and regional partners work together to deliver education

13. Collaboration within education is undoubtedly a good idea, but the idea of mutual or collective responsibility for improvement and results is more problematic. Certainly, it should not be attempted to put this on a legal footing. A legal accountability across clusters and networks would be impractical, to say the least. Whether it is put on a legal footing or not, the danger is that in sharing accountability, there is no one body who is themselves accountable. From a desire to make everyone accountable, you can end up with nobody being accountable. Many parents of children with additional support needs are already familiar with being directed from education authority to school and back again in search of support, answers etc.

14. For children with additional support needs in particular, the key collaborations are often not just with other schools, but with colleagues in social work, associated health professionals and CAMHS teams. Co-locating relevant professionals, akin to the New Community Schools pilot from the early 2000’s, would allow for the co-ordination and availability of specialist support for children who most need it.

15. It is not clear from the document what the purpose or role of educational regions would be. There are numerous examples of education authorities working together to share best practice etc. Even if it were thought to require a renewed emphasis, the setting up of educational regions as an additional layer in the system is not obviously the best answer. As stated above, if the educational regions are to take on Scottish Government functions, then this could be seen as decentralisation of a sort. If they are to take over education authority functions, then the reverse would be true. There is also the possibility of future funding disputes, which particularly affect children with additional support needs – is the cost of additional support going to come from a school budget? Or an authority budget? Or the regional budget?

A clear national framework and building professional capacity in education

16. On p 13 it states “National government is responsible for setting clear priorities for Scottish education”. This has been the case since National Priorities for Education were introduced in 2001. Latterly Scottish Government stopped monitoring the priorities and the measures attached to them. The National Priorities have been replaced and updated as part of the National Improvement Framework. It is disappointing to see additional support needs falling off this list of priorities at this stage.

Fair funding – learner-centred funding

17. The nature of the funding formula is of great importance if the aim of equity is to be achieved. In the event that funding and responsibility is devolved to a school level, then careful management will be required in order that we do not end up with a situation where there is a financial incentive to reject or exclude pupils with additional support needs whose education is the most expensive to provide.

18. One obvious way of countering this would be to ensure that funding was indeed truly learner-centred by a) reflecting the cost of making provision for the child’s individual needs and b) following the child. Done on an individual basis, this would require a much more detailed and widespread system of statutory education planning than is in place at the moment. This does introduce more complexity into the system, however. A system of pupil premiums as operated in England & Wales, might be a more broad brush method of achieving similar goals.

Accountability

19. As mentioned above, the current picture of legal accountability for education duties is disparate and inconsistent, with accessible remedies available in some aspects and none at all in others. The pending establishment of an education chamber within the Scottish Tribunals is an opportunity to have a single route of accountability available for children, parents and young people in relation to their education.

Respondent Information
Iain Nisbet
Education Law Consultant

Excluded from school – what next?

The research evidence on exclusions from school make for grim reading.

The 2013 Edinburgh Study on Youth Transition and Crime found that pupils who were excluded from school at age twelve were four times more likely to be jailed as adults.

Boys, children living in single parent families, and pupils from the poorest communities were most likely to be excluded from school. Equally badly behaved pupils from more affluent areas and those from two parent families were accorded greater tolerance and, as a consequence, were far less likely to be expelled.

The study findings show that one of the keys to tackling Scotland’s high imprisonment rates is to tackle school exclusion. If we could find more imaginative ways of retaining the most challenging children in mainstream education, and ensuring that school is a positive experience for all Scotland’s young people, this would be a major step forward.
– Professor Susan McVie, Co-director of the study

Additionally, Scottish Government statistics from December 2015 reveal that pupils with additional support needs are more than four times more likely to be excluded than pupils with no additional support needs.

And all of this records only formal exclusions, for which there is a paper trail. By definition, the use of “informal exclusions”, cooling off periods, invitations to remove a child, part-time timetables and other means of denying a child their right to education – are not recorded and therefore not widely understood. Anecdotally, this affects children with additional support needs and/or disabilities disproportionately.

Parents (and children with capacity – usually aged 12 or over) have a right of appeal against a school exclusion, whether it is a temporary exclusion or a removal from the school roll.

As things stand, an appeal will be heard, in the first instance, by the education appeal committee. After that, the parent, young person or child has a further right of appeal to the Sheriff Court. The appeal committee has the power to confirm or overturn the exclusion, and to vary any conditions for readmission. The Sheriff, on appeal, has the same powers.

In terms of the Tribunals (Scotland) Act 2014, this jurisdiction will be transferred to the First-Tier Tribunal for Scotland in due course – which is a very welcome change. A right of further appeal will lie to the Upper Tribunal for Scotland. This should make the process of appeal more transparent, independent and accessible.

The right of appeal only applies in relation to public schools, i.e. those managed by the local authority – although some independent schools may have equivalent procedure in place (e.g. an appeal to the board of governors).

Where the excluded child has a disability, an exclusion from school may amount to unlawful disability discrimination in terms of the Equality Act 2010. This is a complex piece of legislation and it can be difficult to tell without specific legal advice whether an act of discrimination has taken place.

A disability claim can be made in respect of any school exclusion, whether the school is an independent, grant-aided or education authority school. Such claims must be made within six months of the exclusion, and are heard by the Additional Support Needs Tribunals for Scotland. The Tribunals have much broader powers that the appeal committee, which might include ordering an apology, staff training, a change in the school’s (or Council’s) policy on exclusions etc. The Tribunal cannot, however, make an order for compensation.

Where a child with additional support needs has been excluded from school, do remember that there are routes by which that decision can be challenged. Particularly where the use of exclusion has become commonplace or is adversely affecting the child’s education or wellbeing, an appeal or a disability claim may be well worth considering.

Religious observance in special schools

As you may have read elsewhere, the Humanist Society of Scotland are bringing a judicial review against the Scottish Government’s decision not to review the law in relation to religious observance in schools.  At present, the law affords an opt-out for parents, but not for children.

Links:

Following on from recommendations from the UN Committee on the Rights of the Child at the last UK “inspection”, the Humanist Society called upon the Scottish Government to review the law to allow older children to take their own decision.  The Scottish Government have refused, stating:

“There is no equivalent statutory right to withdraw afforded to children and young people. However many schools will find it helpful and sensible to include young people in any discussions about opting out, ensuring their wishes are aired.”

My own views on this are already on record elsewhere, and have been for some time:

“The right to withdraw from religious instruction or observance is given to the parent of a pupil, rather than to the pupil themselves. In light of more recent legislation, including the Human Rights Act 1998 (cf. art.9: freedom of thought, conscience and religion) and the Equality Act 2010, schools should also have regard to the views of the child in relation to such matters.”

And what does the law actually say?  It can be found in three main places, which is not always appreciated.  As always the legislation is written as if all children have only one parent (or two who always agree on everything) – there is no rule for what happens if parents disagree about religious observance!

First, Section 9 of the Education (Scotland) Act 1980 sets out the basic rule, under the section heading “Conscience clause”, which is to the effect that the parent of a pupil at a public school has the right to withdraw them from “any instruction in religious subjects” and “any religious observance” in any public school or grant-aided school.  Interestingly, the term “pupil” is used here, rather than child – so the right remains with parents in relation to pupils even after they have turned 16.  Remember also that this is a right to withdraw, not a right to ensure participation.  Arguably – and this may indeed be what the Scottish Government end up arguing – a child or young person who wishes to withdraw from religious observance could insist on other rights (the Human Rights Act 1998 or Scotland Act 1998 in terms of their Article 9 rights) to achieve that result.  There is nothing in this preventing the school from granting such a request.

The children’s rights issue arising from Section 9 would be where a pupil wishes to participate in religious observance – and is prevented from doing so by reason of a parent’s withdrawal request.  An interesting cause for the Humanist Society to be taking up!

Section 10 of the Education (Scotland) Act 1980 (“Safeguards for religious beliefs”) applies to pupils who board at a residential school (or at a hostel for educational purposes).  This affords parents the right to insist on the child being permitted to attend worship, receive religious instruction and participate in religious observance in accordance with the tenets of their parents’ religion.  There is no equivalent to this for the child, but again the duty on the school is to permit the child to do these things (outside school hours and not incurring unreasonable costs) – there is no requirement to compel the pupil to take part.  Nor is there anything preventing the school from allowing the pupil to participate in worship in relation to their own religious beliefs (if they differ from those of their parents).

Finally, Regulation 12(3) of the Schools (General) Regulations 1975 applies to pupils at a special school (includes a special unit within a mainstream school).  This ensures that no education authority may compel a pupil to attend religious observance or receive religious instruction against the wishes of their parents.  Further, it requires the authority to give the parent an opportunity to express their wishes – a requirement not present in the other sections.  Again, the children’s rights issue which may arise is that of a child who wishes to attend religious observance – although this could be permitted, so long as it is not compelled!

The law is no doubt in need of revision – even the terminology barely fits modern educational practice – particularly in non-denominational schools.  However, the Scottish Government’s position is that the law does comply with pupils’ Convention Rights (when read with the guidance and Curriculum for Excellence).  Given the nature of the duties set out above, this may just be correct – although there may be a question mark over how well schools understand this.  If there is an area where the law may breach a pupil’s Convention rights it is for the child who wishes to attend religious observance, but is prevented from doing so because of their parent’s decision to withdraw them.

 

State funding for “independent” schools?

An interesting development. Today’s Herald carries an article on the Glasgow Steiner School seeking direct state funding, following the fire which effectively closed the school back in 2013.  (“Steiner school hit by blaze in landmark bid for state funding”, 20 June 2016)

As the article points out, this is the latest group to seek direct Scottish Government funding for their school, following in the well documented footsteps of St. Joseph’s Primary School in Milngavie.

The Scottish Government already have all of the powers they need to grant the Steiner School’s request.  Section 73 of the Education (Scotland) Act 1980 allows the Scottish Ministers, by regulation, to pay grants to the managers of any educational establishment, and to “any other persons” for providing education or educational services. Section 74(1) allow conditions to be imposed on such grant payments.  This is how Jordanhill School is funded.

No primary legislation would be required. It would be a politically huge step to take, no doubt. Especially in the case of the Steiner School which, as I understand it, runs a different curriculum (i.e. not Curriculum for Excellence).

From a legal perspective, there are two points to consider here.

The first is that both St. Joseph’s and the Glasgow Steiner School are making, essentially the same argument that St. Mary’s Episcopal Primary School made in the case of Dove v. Scottish Ministers back in 2001/02.

The argument is essentially this – the Scottish Ministers directly fund Jordanhill School as a mainstream “grant-aided” school; so why not us? Jordanhill is an anomoly within the system, and maybe some day it will be altered – but until then it can be explained away as a historical curiosity, unique circumstances etc.

Funding other schools directly definitely would open the floodgates, the “why not us?” case becoming more and more difficult to answer each time an exception is made. Maybe the Scottish Government are keen to have more autonomous grant-aided schools but, if so, it should surely be on the basis of a national policy and one which is accessible to all schools who might choose to opt in, not just those which the best PR skills.

From that point of view, and even if this were being done on a “pilot” basis, the proposals have very different implications.  Fund the Steiner school, and the Scottish Government is allowing parents at an independent school to depart from Curriculum for Excellence, and funding them to do so.  Fund St. Joseph’s in Milngavie, and what does that do to East Dunbartonshire Council’s primary school estate planning?

Secondly, in the background, the Scottish Government is still working through the implementation of the Doran Review recommendations – part of which may have a major implication for the seven special schools in Scotland which currently receive direct grant funding from Scottish Government.

Introducing new mechanisms for direct grant funding from Scottish Government in the middle of that process would be complicated to say the least.  It would be problematic to try and insist that any new system could only apply to mainstream schools.  And, if the Scottish Government were open to encouraging parent controlled schools which may take different approaches to education, then projects like the Stoa School in Edinburgh may well be very interested indeed.

While superficially attractive, moves to direct funding of schools by Scottish Government would create more problems than it solves.  Without major structural (and legislative) changes to the way in which education is managed and delivered in Scotland, it is basically a non-starter.

Photo of Rudolf Steiner, 1905 (public domain) https://en.wikipedia.org/wiki/Waldorf_education#/media/File:Steiner_um_1905.jpg

Term-time holidays – the law in Scotland

Big news in education law as Jon Platt, a father from the Isle of White, was cleared of a criminal offence in terms of Section 444(1) of the Education Act 1996.  Having been acquitted by a Magistrate following a seven day absence for a family holiday to Florida, the High Court agreed that the court was entitled to look at the overall record of attendance in determining whether a child had failed to attend school regularly.

Is this decision of relevance to education authorities in Scotland?  In a word, yes.  The legislation is worded in similar terms.  An offence arises in England or Wales where a pupil “fails to attend regularly at the school” – though a defence of “reasonable justification” may arise in some circumstances.  In terms of Section 35(1) of the Education (Scotland) Act 1980, the offence occurs where a child of school age “fails without reasonable excuse to attend regularly at the said school”.

Scottish Office guidance on school attendance was formerly that up to two weeks of family holiday could be regarded as an authorised absence, where attendance was otherwise good.  However, in 2007 the Scottish Government published Included, Engaged and Involved Part 1: Attendance in Scottish Schools, which took a distinctly harder line.

3.6 Family holidays during term time

Following consultation with headteachers, it has been clarified that family holidays should not be recorded as authorised absence, except in exceptional domestic circumstances, where a family needs time together to recover from distress, or where a parent’s employment is of a nature where school-holiday leave cannot be accommodated ( e.g. armed services or emergency services). It is for local authorities and schools to judge when these circumstances apply and authorise absence, accordingly.

The categorisation of most term-time holidays as unauthorised absence has been a contentious issue for some families, many of whom are concerned at the higher cost of holidays during school holiday periods. The Scottish Government has no control over the pricing decisions of holiday companies or flight operators. Our main focus is to encourage parents and pupils to recognise the value of learning and the pitfalls of disrupting learning for the pupil, the rest of the class and the teacher. It is for schools and education authorities to judge what sanctions, if any, they may wish to apply to unauthorised absence due to holidays.

Note that this change to the guidance, which effectively seeks to alter who can be prosecuted for a criminal offence was done without any alteration to the law.  Similar changes were attempted in a similar way south of the border, and now it seems that these efforts have been undone by the courts in dramatic fashion.

Despite differences in the systems, in my view, it is very likely that courts in Scotland would adopt a similar approach to the interpretation of the phrase “attend regularly” – although it should be noted (anecdotally) that the Scottish Courts already take a more lenient approach to sentencing in such cases than the English Courts which have jailed at least one parent for her child’s non-attendance.

It is all but certain that solicitors representing parents being prosecuted in Scotland will be making this argument in appropriate cases from now on.  At the time of writing, the Scottish Government have not responded formally to the judgement, but the Department of Education in Whitehall are already talking about changes to the law.  At the very least, north of the border, education authorities may wish to consider carefully which cases are brought before the courts in future.

The author, Iain Nisbet, is a member of the Attendance Council for his local area.

Educational planning: CSP vs. Child’s Plan

In August 2016, Part 5 of the Children and Young People (Scotland) Act 2014 will come into force, putting the “Child’s Plan” on a statutory footing.  In some quarters, this is seen as the cue to put away all those pesky Co-ordinated Support Plans (CSPs) in a drawer, lock it, and move on …

However, this is not the legal position.  In fact, the new law does not alter the status or effect of the CSP at all.  Article 3(2)(b)(ii) of the Child’s Plan (Scotland) Order 2016 require a Child’s Plan to record all the information set out in a CSP which is “a record of any wellbeing needs which the child has and any action taken or to be taken to address those needs” – or, in other words, most of it. Article 7(9)(b) effectively ties the review cycle of a Child’s Plan to that of the CSP.

And despite these (and other) legislative developments within this time, the CSP remains an important part of the education policy. The Scottish Government recently listed their
‘continued commitment’ to the additional support for learning legislative framework as the key commitment in the field of education, in their Draft Delivery Plan (2016–2020) for the UN Convention on the Rights of Persons with Disabilities.

From a dispute resolution point of view, for all its faults, the system of mediation, independent adjudication and the Additional Support Needs Tribunals for Scotland provide a more robust system than the system of complaints set up under the Children and Young People (Scotland) Act 2014 (Part 4 and Part 5 Complaints) Order 2016.

Therefore, it would seem that there is life in the old CSP yet…

Reasonable adjustments for disabled pupils

Some pupils with additional support needs are also disabled and, as such, enjoy the additional protections of the Equality Act 2010.

One of these additional protections is the reasonable adjustments duty.

The duty to make reasonable adjustments includes three requirements:

  1. adjustments to avoid substantial disadvantage arising from a provision, criterion or practice (“PCP”);
  2. adjustments to avoid substantial disadvantage from the physical features of a building;
  3. adjustments to avoid substantial disadvantage by providing an auxiliary aid (or auxiliary service).

The second requirement does not apply to schools. In Scotland, the Education (Disability Strategies and Pupils Educational Records) (Scotland) Act 2002 apply instead. This Act requires responsible bodies for schools to draft an accessibility strategy, which sets out planned improvements to the physical accessibility of the school (among other things). Cf. “Planning improvements for disabled pupils’ access to education: Guidance for education authorities, independent and grant-aided schools” (Scottish Government Guidance).

A failure to comply with a reasonable adjustments duty in relation to any disabled person amounts to unlawful discrimination.

The reasonable adjustments duty for schools applies in relation to:

  1. deciding who is admitted to the school; and
  2. providing education or access to a “benefit, facility or service” (this might include school lunches, uniform policy, playtimes, out of school trips, after-school clubs, assemblies, discipline etc. etc.).

In deciding whether an adjustment would be reasonable or not, you should read and consider the Technical Guidance for schools in Scotland, which gives a list of factors to bear in mind together with several useful examples.

Without intending to be exhaustive, and in no particular order, the following are some of the factors that are likely to be taken into account when considering what adjustments it is reasonable for a school to have to make:

  • The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;
  • The extent to which support will be provided to the pupil under the Education (Additional Support for Learning) (Scotland) Act 2004, as amended;
  • The resources of the school and the availability of financial or other assistance;
  • The financial and other costs of making the adjustment;
  • The practicability of the adjustment;
  • The effect of the disability on the individual;
  • Health and safety requirements;
  • The need to maintain academic, musical, sporting and other standards;
  • The interests of other pupils and prospective pupils.

Technical Guidance (6.29)

Example:
A pupil with learning difficulties is excluded for repeatedly getting up from his seat during lessons and disrupting other pupils. It is the school’s policy that repeated disruptive behaviour is punished by exclusion. The school is under a duty to make reasonable adjustments to its policy, which might mean disregarding some of the disruptive behaviour and working with the pupil to find a way in which to help him to remain in his seat during lessons.
Technical Guidance (4.12)

Example:
A visually impaired child requires printed handouts to be prepared in 24pt font or larger. This can easily be accommodated by ensuring that fonts are reset to this size prior to any documentation being printed.
Technical Guidance (6.45)

A school’s duty to make reasonable adjustments is often referred to as an “anticipatory duty” and it is owed to disabled pupils generally. Therefore, schools must plan ahead and consider in advance what disabled pupils may require, rather than simply responding to difficulties as they arise.

GIRFEC – understanding the Code …

Much of the Children and Young People (Scotland) Act 2014 is due to come into force this autumn (subject to anything the Supreme Court may have to say in the case of Christian Institute & Ors v. Scottish Ministers). This has been characterised by some as GIRFEC (Getting It Right For Every Child) becoming law.

However, there are at least some parts of the GIRFEC framework which already carry (some) legal weight, by virtue of the Education (Additional Support for Learning) (Scotland) Act 2004.  That Act (in section 27) requires the Scottish Ministers to prepare a statutory Code of Practice (currently in its 2nd edition), to which education authorities and other appropriate agencies must have regard in carrying out their functions.

The Code has a lot to say about GIRFEC already (and it was published in 2010).  Here’s some of the highlights:

“Effective assessment, planning, action and review, consistent with the values and principles of Curriculum for Excellence, Getting it right for every child, the Early Years Framework and the provisions of this Act, involve:

  • taking a holistic view of children and young people and their circumstances, and what they need to grow and develop and achieve their potential;
  • seeking, taking account of and noting the views of children, parents and young people and involving them fully in the assessment process and in finding solutions;
  • ensuring that parents, children and young people, understand, and are asked to agree to, the aims of any assessment and the purposes of any action proposed ensuring that assessment is an ongoing, integrated process of gathering and evaluating information, planning, providing for, and reviewing, services for the individual;
  • adopting the least intrusive and most effective course of action affecting the lives of children, young people and families;
  • taking into account issues of diversity and equality and ensuring that outcomes do not discriminate against children, young people and their families. This includes not discriminating on grounds of race, disability, gender, sexual orientation, language, culture, religion or belief, and age.
  • working in partnership with, and building the capacity of, parents to secure education for their children and to promote their child‘s health and wellbeing, development and welfare.”

“Those with additional support needs comprise a broad group of children and young people whose needs require to be identified, understood and addressed to ensure that they benefit from school education. Education authorities need to play their part in ensuring that there is effective communication, collaboration and integrated assessment, planning, action and review when other agencies are involved.”

“Where lead professionals are working with children or young people with additional support needs then, in addition to the points set out below, they also have a responsibility to be familiar with the Act and, in particular, to ensure that parents and young people themselves are aware of their rights when they have concerns or disagreements about the provisions being made under the Act.”

“Where a range of individual assessments is required, the education authority should, in line with Getting it right for every child practice, seek to bring these within one assessment process to avoid duplication and placing the child or young person, and his/her family, under stress. This will involve ensuring that there is a lead professional co-ordinating the process when the assessments involve multi-professional staff. The ultimate aim will be to bring the assessments and their conclusions together into a single plan of action.”

“In all circumstances, planning should aim to ensure the effective co-ordination of support, including parents and the child or young person, so that it is clear what the intended learning outcomes are and what additional support is required to achieve these. Every opportunity should be taken to ensure that there is an integrated plan of action for a child or young person where more than one agency or service is involved and the aim should be to have one plan in line with the principles of Getting it right for every child.”

When is school not at school?

Section 1 of the Standards in Scotland’s Schools etc. Act 2000 says that every child of school age (roughly: ages 5-16) has the right to “school education” by, or arranged by, an education authority.

However, not every child of school age receives education by way of education at a school or other establishment.

Some children are, of course, home educated.  But even where the education authority remain responsible for a child’s school education, the law requiring “school education” does not necessarily imply that the education will be provided in a school.

For example, in Section 3(2) of the 2000 Act, education authorities are obliged to secure improvement in school education provided in their schools; and in s.3(3), those duties “shall apply also in relation to school education which is provided in pursuance of any arrangements made, or entered into, by an education authority under (a) section 14 of the 1980 Act; or (b) section 35 of this Act.” that is education while excluded from school or unable to attend school due to ill-health; and nursery education provided by partnership nurseries.

Section 16 of the 2000 Act forbids corporal punishment given by, or on the authority of, a member of staff to “a pupil .. for whom school education is provided by an education authority (whether or not at a school);”

In the Explanatory Notes to the Standards in Scotland’s Schools etc. Act 2000, it is explained that “Section 16(1)(a) covers school education provided by an education authority, whether at school or elsewhere, for example at home or in hospital.”

Section 277 of the Mental Health (Care & Treatment) (Scotland) Act 2003, amends Section 14 of the Education (Scotland) Act 1980 to require education authorities to make arrangements for “school education” for children unable to attend school because they are subject to compulsory measures authorised by the 2003 Act or, in consequence of their mental disorder, by the Criminal Procedure (Scotland) 1995 Act.

The legal definitions of “pupil”, “primary education” and “secondary education”, found in the 1980 Act, do not necessarily require attendance at school or any other establishment.

This is of relevance in the context of new duties to be introduced by Section 21 of the Education (Scotland) Act 2016.  Section 21 introduces a new Section 2ZA (“Learning hours”) which requires education authorities and grant-aided schools to provide a minimum number of learning hours per annum for every pupil.

Section 2ZA(12) defines “learning hours” as “hours of school education of such type as may be prescribed”.  Much may depend on the precise form of the regulations which are to follow, but it is worth noting that this definition does not necessarily require all (or any) of these learning hours to take place at school.

Additional Support Needs

boydrawing
Freeimages.com / Viviane Stonoga

This is the first post on this new blog, which takes a look at legal issues relating to additional support.  What better place to begin then, than Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004, as amended?

Specifically, we need to know what is meant by “additional support needs”? This is an important question as various rights and duties arise in law where a child or young person has additional support needs.

However, whether a child or young person has additional support needs is a question of fact, and does not rely on whether the education authority have formally assessed the child / YP or not.(cf. Parents of Child J v. Dumfries & Galloway Council 2015 SLT (Sh Ct) 253)

A child or young person is said to have additional support needs where “for whatever reason” they require additional support in order to benefit from school education (see below for more on the term “school education”).

The Code of Practice (“Supporting Children’s Learning”) suggests the following as examples of factors which may give rise to additional support needs:

  • having English as an additional language;
  • being a young carer;
  • being looked after by the local authority;
  • having a sensory impairment;
  • having a specific language impairment;
  • having other learning difficulties;
  • being bullied;
  • children with behavioural difficulties;
  • “gifted” or able pupils (e.g. RB v. The Highland Council 2007 SLT 844)

Since the 2009 Act, looked after children are presumed in law to have additional support needs, unless the authority have formally assessed them as having no such needs.  Where a looked after child has additional support needs, the authority must formally determine whether they require a Co-ordinated Support Plan.

It is worth reminding ourselves how broad the phrase “additional support needs” is. Also, note that a child or young person may have additional support needs due to a variety of factors.

“Additional support” is defined as provision which is additional or different to the provision normally made for pupils of the same age in local mainstream schools.

References to school education include, in particular, education which is “directed to the development of the personality, talents and mental and physical abilities of that child or young person to their fullest potential.”

That wording is taken directly from Article 29 of the UN Convention on the Rights of the Child, and underlines that the provision to be made for children with additional support needs should be made with a view to significant educational progression – including development in areas which would not traditionally be regarded as academic.