Category: Additional Support Needs

Case Summary: Aberdeenshire Council v. CD (Upper Tribunal for Scotland)

On By Iain NisbetIn Additional Support Needs, Case summaryLeave a comment

This is an interesting case concerning the criteria for determining which children or young persons require a Co-ordinated Support Plan (CSP).

Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 sets out the criteria as follows:

For the purposes of this Act, a child or young person requires a plan (referred to in this Act as a “co-ordinated support plan”) for the provision of additional support if-

(a) an education authority are responsible for the school education of the child or young person,

(b) the child or young person has additional support needs arising from-

(i) one or more complex factors, or

(ii) multiple factors,

(c) those needs are likely to continue for more than a year, and

(d) those needs require significant additional support to be provided-

(i) by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or

(ii) by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.

Section 2(1), Education (Additional Support for Learning) (Scotland) Act 2004

The meaning of this provision, and of its four criteria, has already been the subject of much discussion. Some of the criteria are more straightforward than others.

The criterion set out in Section 2(1)(d) tends to be the one which is the hardest to pin down, and has needed the most in the way of judicial interpretation. Of particular note is the case of JT v. Stirling Council [2007] CSIH 52, which more or less settled the correct approach to deciding whether particular support(s) can be considered as “significant” or not.

This case considered the question of what the modifier “significant” applies to in the first place.

CD’s request for a CSP

CD is a pupil in a mainstream secondary school. With the assistance of an advocacy worker from the national children’s support service, My Rights, My Say, he made a formal request to his education authority (Aberdeenshire Council) to determine whether he required a CSP. The education authority decided that he did not.

There was no dispute over subsections 2(1)(a) to (c). It was accepted that these criteria were met. However, the education authority decided that 2(1)(d) did not apply. It was (more or less) accepted that the child required significant additional support from the education authority in the exercise of their education functions. The education authority, however, found that the additional support the child required from social work and health services was not significant.

This then, was at the heart of the matter. Should the Tribunal be considering whether the additional support required (across education and the other agencies) was significant? Or should it consider separately whether the additional support from education was significant and – in addition – whether the additional support from the other agency or agencies was significant. At the First-tier Tribunal (Health and Education Chamber), the first was described as being a “cumulative approach” and the latter as being a “non-cumulative approach” (although the Upper Tribunal did not adopt these terms).

At the First-tier Tribunal, a cumulative approach was adopted, and the education authority were ordered to prepare a CSP for the child. In fact, the Tribunal decided that he would be eligible for a CSP under either approach in any event. This means that the Upper Tribunal appeal which was lodged by the education authority would not have an effect of whether or not CD should have a CSP, but it would certainly have an impact on whether other children and young persons will receive such plans.

As Lady Poole (the Upper Tribunal Judge) notes: “CSPs benefit pupils for whom they are necessary, but they also place burdens on education authorities with finite resources” (pg 2, para 2).

It therefore matters, both for children and young people with additional support needs, but also for education authority finance officers, which approach is correct.

The correct approach

In the end, the decision for the Upper Tribunal was a relatively easy one.

My decision is that the FTS ought to have concluded that in order to meet the criterion in section 2(1)(d), as well as the pupil requiring significant additional support from the education authority, the pupil also had to require significant additional support either from the local authority exercising functions other than education or from one or more appropriate agencies.

Aberdeenshire Council v. CD [2023] UT 28, per Lady Poole at para 10

You can read the full decision here: Aberdeenshire Council v. CD [2023] UT 28

The Upper Tribunal was satisfied that the ordinary meaning of the words “as well as” as used in subsections 2(1)(d)(i) and (ii) was that both sets of additional support had to be significant.

This was held to be consistent with intention of the Scottish Parliament. While it was conceded that “It may be that co-ordination of services would be of assistance, even if services provided by a body external to the education authority are not ‘significant’ ..” it was held that the formal, statutory document of a CSP was intended only “for those with the most extensive co-ordination and support needs”. It was held that this approach “is likely to channel CSPs to cases where there is an increased need to co-ordinate services from different services.”

While the specific issue in this case had not been considered before, the approach adopted by the Upper Tribunal was consistent with statements made by the Inner House of the Court of Session in other cases considering questions of eligibility for a CSP. Even though the point may not have been argued, there was “a consistent assumption common to all of [the cases] which has endured since shortly after the 2004 Act came into force .. It is appropriate that this clear and consistent body of caselaw is followed, rather than the FTS taking a different approach.”

Finally, the preferred approach was consistent with the Code of Practice which, while not binding on the Upper Tribunal, would need a good reason to depart from its provisions. In the view of the Upper Tribunal “insufficient reasons are available in this particular case to depart from the relevant parts of the Code of Practice.”

Additional comments

As sometimes happens, having made the decision, the Upper Tribunal went on to make some more general comments – in this case about Co-ordinated Support Plans. The comments are extremely helpful, and so I am taking the time to summarise them here for you. As the Upper Tribunal notes: “CSPs can be of great benefit to a person with additional support needs and their families, so it is important the statutory criteria are applied properly.”

The Upper Tribunal first noted that just over 241,000 pupils in Scotland have additional support needs (approx. one third of the total pupil population). Of those pupils, only 1,401 have CSPs (i.e. around 0.2% of all pupils). It has been noted elsewhere that while the numbers of pupils with additional support need has been increasing year on year, the numbers of co-ordinated support plans, paradoxically, have been dropping year on year. (cf. “Vital support plans for pupils ‘disappearing'” The Herald, 2019)

  1. The Upper Tribunal notes that the wording of section 2(1)(d) is “those needs require significant additional support to be provided”. That is, what does the child or young person require – not what are they being provided with, or what has been offered. The answers to these questions may differ. As the UT notes “an approach that analyses only support that has in fact been provided, rather than what needs ‘require’, may in some cases be too narrow”. In my experience, all too often an education authority’s pro forma enquiry to appropriate agencies asks only what is being provided. This needs to change.
  2. The Upper Tribunal reiterates the well established approach to determining whether support is “significant” or not – it “is to be judged by reference to the need for co-ordination, with attention being paid to frequency, nature, intensity and duration of the provision of support, and the extent to which the support is necessary for achievement of educational objectives”. This is a useful restatement of the test, underlining the centrality of the need for co-ordination, and the multi-factorial nature of the test. The Upper Tribunal goes on to observe that the term significant “is not intended as an impossibly high standard”.
  3. The decision is clear that there should be no “cumulative approach” or summing-up of support across education and other services. However, the Upper Tribunal confirms the Code of Practice’s approach, which is to take a cumulative approach in determining whether there is significant additional support from sources external to the education authority. “The totality of support required from providers external to the education authority exercising education functions should be considered, in order to determine if it amounts to significant additional support.”

Conclusion

From a pupils’ rights point of view, the decision is a disappointing one, as the opposite decision would likely have led to a substantial increase in the numbers of pupils receiving a CSP. However, I think it is the correct decision, given the wording of the section, the Inner House authority and Code of Practice. And, in its concluding comments, the Upper Tribunal has provided some useful guidance for education authorities which, if followed, should avoid some children with additional support needs being incorrectly refused a CSP.

Photo credit: sweetlouise via Pixabay

Learning hours consultation – my concerns

On By Iain NisbetIn Additional Support Needs, Attendance and absence, Consultation responses, Exclusion, School EducationLeave a comment

Response to Consultation on Prescribing the minimum annual number of learning hours

The Scottish Government are seeking views on the prescribed minimum learning hours for primary and secondary pupils in local authority schools in Scotland.

Sadly, for many pupils the number of hours prescribed will be largely irrelevant as the statutory exemptions provided will allow education authorities to provide reduced learning hours based on broad criteria at their say-so alone.

The concerns outlined below were discussed with Scottish Government officials over a period from the passing of the Education (Scotland) Act 2016 to August 2018.

The Law

As the consultation points out, there is a long-established and near universal practice of schools providing 25 hours per week of school education and 27.5 hours per week in secondary schools.

As there is currently no legal requirement that this be the case, or legal entitlement to those specific number of hours, what is to stop individual pupils from missing out on their full entitlement to school education?

Perhaps surprisingly, it is the laws regulating the use of exclusion from school which provide those safeguards.

If a child or young person is a pupil at a school, they are entitled to attend that school during the school day. For a child or young person to be prevented from attending their school when school is on requires a formal exclusion – with all of the requirements that go with that (specified grounds for exclusion, a right of appeal, a duty to provide alternative means of education). Legally, it is also possible for the parents or young person to agree with the school that the pupil should not attend school (although this is not regarded as good practice).

Schools and education authorities have long used all kinds of linguistic gymnastics to get around the exclusion rules. Such attempts are almost always described as being in the best interests of the child or young person being excluded.

Fortunately, the courts[1], Tribunal[2] and official guidance[3] have been consistently clear that this is not an acceptable approach.

The exclusions guidance does recognise “flexible packages” may be a suitable approach for some pupils. However, this is qualified. It should be following “an appropriate assessment”. And it should “ensure that children and young people attend school or another learning environment for the recommended 25 hours in primary schools and 27.5 hours for secondary schools.”[4]

The exclusions guidance also does recognise a reduction in hours may be possible – although again in highly restricted circumstances. There should be an agreement that this best meets the needs of the child that should be “carefully negotiated” – i.e. agreed with parent and child. The arrangements should also be “for a limited period” and carefully “recorded and monitored”.[5]

The Tribunal takes a similar view: “All children in Scotland have a right to education and authorities have a duty to provide this. All children need to be included, engaged and involved in their education.”

 “The provision of a part time timetable would not be unfavourable if the claimant could not benefit from full time education but there was no evidence to suggest this.”[6]

One of the key expectations of inclusive education in Scotland is that “All children and young people should receive a full time education including flexible approaches to meet their needs.”[7]

National statistics demonstrate that disabled pupils and looked after pupils are disproportionately subject to exclusion: both formal and informal exclusions.[8]

As the 2018 report “Not included, not engaged, not involved: A report on the experiences of autistic children missing school.” notes, informal exclusions are a particular problem:

“As well as through formal exclusions from school, instances have been reported of autistic children being excluded from their education in other ways. This includes the use of part-time timetables, children missing school due to anxiety or other health needs, and a lack of suitable school placement or support meaning a child is unable to be in school. There are also concerns that many families are being asked to pick their child up from school early on a regular basis, without the child having been formally excluded – a practice which is unlawful.”[9]

The Promise commits Scotland to ending the exclusion of looked after children: “The formal and informal exclusion of care experienced children from education will end.” Plan 21-24 states that this will happen by 31 March 2024 – less than a year away.[10]

As The Promise Oversight Board’s Report ONE (May 2022) notes: “We do not know the extent of informal exclusion. [Formal exclusions] data does not tell us anything meaningful. There are differing reporting practices across local authorities, meaning this figure is only indicative.”[11]

The Proposal

Section 2ZA of the Education (Scotland) Act 1980 (as amended) requires education authorities to ensure that no fewer than the prescribed number of learning hours are made available during each school year to each pupil for whose school education they are responsible.

Subsection (3) provides that an education authority may provide fewer than the prescribed hours in certain specified circumstances.

Those relevant circumstances include:

(4)(b) that the authority is satisfied that the pupil’s wellbeing would be adversely affected if the prescribed hours were to be made available to the pupil..

The Problems

This innocuous sounding exemption raises several difficulties which will impact the most vulnerable children most severely:

The decision to provide a child with less than their full entitlement to education can be made by the education authority alone. There is no requirement (as there is elsewhere in education law) to seek the views of the child or their parents, still less to secure their consent. The consultation document says that the exception “would give the education authority flexibility to deliver an individualised number of learning hours to a pupil if it is agreed that this is appropriate to meet the needs of that pupil and respects their right to an education.” This is inaccurate and misleading as no agreement is legally required to implement the exception. This wording in the consultation document is likely to mean that this issue is not properly understood or addressed by consultees. It will provide Scottish Ministers with an inadequate basis on which to decide what action to take as a result.

That sentence would more accurately read “This would give the education authority legal authority to deliver a lower number of learning hours to a pupil even if others (the child, parents, social work, health, vol orgs etc) do not agree that this is appropriate to meet the needs of the pupil and respects their right to an education.”

It presupposes that where a child’s wellbeing is being affected by their attendance at school, that the correct approach is to reduce their attendance at school, rather than to look at e.g. reasonable adjustments that can be made for the pupil, or whether an alternative school placement would be more appropriate.

Far from being a justification for reduced attendance, the mainstreaming guidance cites, in particular, the wellbeing indicators of “Included” and “Achieving” as underlining the importance of full-time attendance at school.

It also notes the importance of supporting pupils’ inclusion and participation at school. Key expectations include: “All children and young people should be supported to participate in all parts of school life” and “All children and young people should be supported to overcome barriers to learning and achieve their full potential”.[12]

Scottish Government guidance on attendance also recognises: “Schools should recognise that poor attendance can often be related to, or be an indication of, an additional support need and they should use their staged intervention processes to ensure that any barriers to learning are identified and appropriate support is provided.”[13]

The grounds on which an education authority can rely on the exemption to justify providing less than a child’s full entitlement to learning hours are framed in extremely broad terms.

As detailed above, the repeated experience of children subject to informal exclusion, part-time timetables, sending home etc. is that they (or their parents) will be told that it is for the child’s benefit, in their best interests, in order to support their wellbeing. The child, or their parents frequently do not share that view.

Attendance at school is important and is closely monitored and enforced. A parent’s duty to ensure their child attends school cannot be overridden because they are satisfied that the child is being insufficiently “Nurtured” at school. Indeed, even where parents have legitimate concerns about whether their child is “Safe” at school (e.g. due to bullying) the Courts have been reluctant to accept that as a reasonable excuse for non-attendance[14].

Why would an education authority be empowered to effectively prevent a child from attending school, in circumstances where a parent (who is likely to know and understand their child’s wellbeing better) is forbidden from doing so?

This exemption would allow education authorities to reduce children’s attendance at school in circumstances which fall well below the legal threshold of “reasonable excuse” for non-attendance. As even formal exclusion from school is not regarded as a reasonable excuse for non-attendance[15], this could potentially  leave parents open to enforcement proceedings by way of referral to the children’s panel or even criminal prosecution in the Sheriff Court.

By structuring this as an exemption from the duty (in terms of subsections (3) and (4)) rather than circumstances in which different provision can be made for different purposes (or different types of pupil) (in terms of subsection (9)(b)&(c)), there is not even the ability for Scottish Ministers to set a minimum number of learning hours as a lower threshold, or to specify alternative types of provision which could be considered learning hours in circumstances where school attendance was not suitable.

 The introduction of a prescribed number of annual learning hours follows a similar pattern to the mandatory amount of early learning and childcare. Sections 47 & 48 of the Children and Young People (Scotland) Act 2014 requires education authorities to secure the mandatory amount of early learning and childcare is made available for eligible pre-school children in their area. The mandatory amount is currently prescribed as 1140 hours annually. It is not subject to exemptions as Section 2ZA is. There is no ability for the education authority to depart from their duty to make the provision available of the grounds of their view of the child’s wellbeing.

The only circumstance in which an exemption applies is in relation to looked after two year olds (s49) – in which case a specific duty to make alternative arrangements applies. The exemption cannot be used for older children.

Indeed, the exclusions guidance states explicitly that the annual hours entitlement for early learning and childcare applies even where a child has been excluded by their nursery provider – “the child still has a legal right to receive the hours they might miss due to having been excluded.”[16]

Why should it be the case that an annual entitlement hours for nursery education is secure and guaranteed for children with additional support needs, but the equivalent entitlement to learning hours in primary or secondary education is subject to a broad, discretionary and unregulated exemption? Why are children’s rights to primary and secondary education being treated as lesser than their rights to nursery education?

There is no good, accessible or direct means of challenging a decision of the education authority to provide fewer than a pupil’s full entitlement of learning hours on these grounds. There is no specific procedure that the education authority require to take, nor any obligation on them to inform the child or their parents of their rights (such as they are) or sources of advice and support.

The lack of safeguards (procedural or substantive) in the use of this exemption is of particular concern in the context that the application of an exemption engages fundamental rights, including the right to education under Article 28 of the UN Convention on the Rights of the Child, Article 24 of the UN Convention on the Rights of Persons with Disabilities, and Article 2 of Protocol 1 of the European Convention on Human Rights.

In Summary

The exemption found in Section 2ZA(4)(a) of the Education (Scotland) Act 1980:

  • directly contradicts the Scottish Government guidance on the presumption of mainstreaming, exclusion and attendance;
  • undermines the commitment in The Promise to end formal and informal exclusion for care experienced pupils;
  • can be relied on unilaterally with no procedural or substantive safeguards or protections for children affected.

It provides a legal justification for failing to provide Scotland’s most vulnerable children with their full entitlement of education and is likely to make an existing problem much, much worse.

How to fix this…

The implementation of this exemption should be delayed. This should be possible by way of regulation, as a “transitional or transitory” measure, in terms of Section 2ZA(9)(a).

A full Equality Impact Assessment and Children’s Rights Impact Assessment requires to be undertaken, as well as a fresh consultation which highlights and centres this issue to allow it to be properly considered.

Significant amendment to / partial repeal of Section 2ZA is likely to be required in due course.

If the implementation absolutely has to go ahead in the meantime, Section 2ZA(10) allows for the list at subsection (7) to be amended. Consideration should be given to adding the four key feature of inclusion: present, participating, achieving, and supported.

Consideration should be given to adding the use of this exemption where it is not appropriate and / or does not respect the child’s right to education to the list of decisions which may be referred to the First-tier Tribunal in Section 18(3) of the Education (Additional Support for Learning) (Scotland) Act 2004.

Failing which, consideration should be given to adding the use of this exemption where is it not appropriate and / or does not respect the child’s right to education to the list of specified matters in the Schedule to the Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005.

These matters could be effected by way of subordinate legislation (Section 16 and 20 of the 2004 Act, respectively).

[1] Proudfoot v. Glasgow City Council 2003 SLT (Sh Ct) 23 – “benefit of a fresh start” was found not to be a legitimate ground for exclusion

[2] ASN/D/22/01/2021 – “The responsible body deny that their decision to stop the claimant from attending classes in the school, which included moving all of her learning opportunities outwith the school building (R106, para 23), amounted to an exclusion. We are not clear what the responsible body think the difference is between their decision and an exclusion. The decision had the purpose and effect of bringing the claimant’s attendance at the school to an end. ..  There was a clear intention that the claimant should not attend school and not access any classes. On any reasonable interpretation this amounts to exclusion.”

[3] Included, Engaged and Involved Part 2: A Positive Approach to Preventing and Managing School Exclusions: “Sending home without excluding – All exclusions from school must be formally recorded. Children and young people must not be sent home on an ‘informal exclusion’ or sent home to ‘cool-off’”

[4] Included, Engaged and Involved Part 2, pg 25

[5] Included, Engaged and Involved Part 2, pg 25

[6] ASN/D/22/01/2021, supra

[7] “Guidance on the presumption to provide education in a mainstream setting” March 2019, at pg 6

[8] Cf. https://www.gov.scot/publications/summary-statistics-schools-scotland/pages/8/ and https://www.gov.scot/publications/education-outcomes-looked-children-2020-21/pages/6/#:~:text=In%202020%2F21%2C%20the%20rate,1%2C000%20pupils%20for%20all%20pupils.

[9] https://www.notengaged.com/download/SA-Out-Of-School-Report.pdf at pg 3

[10] https://thepromise.scot/resources/2021/plan-21-24.pdf at pg 22

[11] https://thepromise.scot/resources/2022/promise-oversight-board-report-one.pdf at pg 29

[12] At pg 10 “Supported”

[13] “Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools”

[14] Cf. Montgomery v Cumming, High Court of Justiciary, unreported, 17 December 1998 – https://www.scotcourts.gov.uk/search-judgments/judgment?id=634c87a6-8980-69d2-b500-ff0000d74aa7

[15] Cf. D. v. Kennedy 1988 SLT 55

[16] Included Engaged and Involved Part 2, at pg 32

Article on Physical Intervention in Schools

On By Iain NisbetIn Additional Support Needs, Pupil Welfare / WellbeingLeave a comment

It is a little late to be bringing you news of the publication of Edition 9 of the Health and Education Chamber’s Bulletin – as it has been available since November! However, the Bulletins, which are always worth a read, are slightly tucked away in a corner of the website where you wouldn’t necessarily stumble across them.

So, I am letting you know that the latest Bulletin contains some really useful and interesting material including:

  • an update on the return to “in person” hearings;
  • an article by Angela Morgan OBE, independent chair of the review of additional support for learning;
  • an article by one of the legal members on the case of Cowie & Ors v Scottish Fire and Rescue Service on what is meant by “unfavourable treatment”;
  • an article by one of the specialist members on The Promise, and what steps are being taken to implement it, particularly in the Falkirk / Forth Valley area.

It also features an article by me on the Scottish Government’s draft guidance on the use of physical intervention in schools. the article can be found on pp 16-19 of the Bulletin. It looks in detail at cases which have been decided by the Tribunal concerning the use of restraint / physical intervention in schools.

National guidance will undoubtedly be of assistance to tribunals considering claims of disability discrimination in cases of physical intervention or restraint. The rights based approach adopted by the Scottish Government aligns well with the Tribunal’s existing decisions.

Article: “Draft Guidance on the Use of Physical Intervention in Schools” Nisbet, I. (HEC Bulletin, Ed 9) Nov 2022

To read the full article, you can access the Bulletin here:

“The Bulletin” Edition 9 (Nov 2022) – Health and Education Chamber (PDF)

Education Appeal Committees – the end?

On By Iain NisbetIn Additional Support Needs, Consultation responses, Placing RequestsLeave a comment

The Scottish Government recently consulted on a (longstanding) proposal that the functions of education appeal committees (hearing exclusion appeals, and most placing request appeals) be transferred to the Health and Education Chamber of the First-tier Tribunal for Scotland.

With the assistance of colleagues, I prepared a response on behalf of My Rights, My Say. The edited highlights of the response are below.

Continue reading “Education Appeal Committees – the end?” →

Centre Stage

On By Iain NisbetIn Additional Support NeedsLeave a comment

Yesterday, the report by Prof. Ken Muir CBE “Putting Learners at the Centre: Towards a Future Vision for Scottish Education” was published, alongside the Scottish Government’s response to the report and its recommendations. The recommendations are all either fully accepted, broadly accepted or accepted in principle.

The headlines, of course, are on what is to become of Scotland’s national agencies. In summary:

  • The Scottish Qualifications Authority is to be replaced by a new body with the same role, provisionally called “Qualifications Scotland” – which will have a governance structure which allows for more participation by pupils, teachers and other stakeholders. (I note that the URL “www.qualifications.scot” already redirects to the current SQA website)
  • There is to be a national agency for Scottish education, which will take on all of the current functions of Education Scotland (apart from the inspection functions), plus some other education bits and bobs (including the Scottish Credit and Qualifications Framework (SCQF) Partnership).
  • There will be new Inspectorate body established, with its independence guaranteed in legislation.
Continue reading “Centre Stage” →

CSP Report

On By Iain NisbetIn Additional Support Needs, School EducationLeave a comment

At the end of November, the short-life working group on Co-ordinated Support Plans (CSPs) released its Final Report. The purpose of the report was to identify barriers to the effective implementation of the CSP legislation and to make recommendations to support progress.

The report begins, as these things often do, with a statement of principles. In this case, we are reminded that “Scottish education is based on the belief that education is a human right and that all children and young people should be supported to reach their full potential.” The Scottish Government’s intention to incorporate the UN Convention on the Rights of the Child is referenced, as are the four key features of inclusion, which we first saw in the guidance on the presumption of mainstreaming.

It also highlights, helpfully, that “Support is not dependent on a diagnosis.” and “Where the legal tests are met for a CSP, the child or young person must have a CSP – even where other plans are in place.” These short reminders could usefully be tattooed on the forearms of everyone working in the sector – although this is not one of the report’s recommendations.

As I am involved in the My Rights, My Say project, I was pleased to see that the report notes the right of children aged 12-15 with capacity to ask the education authority to be assessed for a CSP and to challenge CSP decisions at Tribunal.

So, to the recommendations. The report notes that the legislation and policy in this field is “commendable and well-intentioned” but that there is “a significant gap between policy and practice”. It highlights the need for “consistency and a common understanding of the language used in relation to CSPs”. To that end, it recommends promoting awareness and knowledge. This should involve “a set of tailored ‘key messages'” to be “widely shared with children and young people, parents and carers and professionals across agencies” – including social work and health.

However, I think there are already some really good materials out there, both those created by some education authorities, and those made by the third sector, by organisations like Enquire. The difficulty, as always, is getting this information to the right people at the right time.

The report does concede that the statutory criteria are complex, and that (over 15 years on!) there is still a “variable interpretation of what ‘significant additional support’ means when considering whether a CSP should be opened.” This is as close as the report gets to suggesting that the legislation itself needs to be looked at again. In fairness, this was outwith their remit, and is a fairly heavy hint.

The Code of Practice is due to be refreshed shortly, and the report sees this as an opportunity to ensure that it is more accessible, and clearly explains the “complex legal duties” in this field. While this is obviously easier said than done, it is definitely a worthwhile goal. The report also notes that the 4th edition of the statutory Code should clarify the relationship between the CSP and other plans used for children.

The report does understand that to help professionals become more familiar with the rules and policy around CSPs will take a commitment in time, and so recommends that professional (both in education and in other agencies) be allocated specific time to access the appropriate professional learning resources, and that this should lead to those professionals being able to “proactively provide families with the information they require about CSPs”.

Further recommendations include:

  • “ensuring that clear and appropriate signposting is available on local authority web pages”
  • further guidance to be developed “to remove barriers to effective engagement”
  • the Additional Support for Learning Implementation Group (ASLIG) to engage with work on “streamlining planning processes”. Specifically we are told that “the next phase of the refresh of the GIRFEC policy and practice materials .. will focus on the Child’s Plan, with the aim of moving towards a ‘one child one plan’ approach.” This is expected to lead to “[s]trengthening guidance around a single planning process”
  • ASLIG to consider the issue of resources (often the elephant in the room), having regard to “the need to ensure that there are sufficient numbers of appropriately trained staff to provide support”.
  • ASLIG to support “the planned audit of outcomes for children and young people with additional support needs undertaken by Audit Scotland.” Given that this has been something of a hobby horse for ASLIG for a while now, I’d imagine that this support would be enthusiastically forthcoming!

The renewed focus on the Child’s Plan in this report is interesting, given that the baby of the Child’s Plan appears to have been (legislatively) thrown out with the bathwater of the Named Person in the proposed repeal “in due course” of sections of the Children and Young People (Scotland) Act 2014, following the Supreme Court‘s decision in The Christian Institute & Ors v. The Lord Advocate [2016] UKSC 51.

So, what happens next? “This report has been shared with ASLIG who will publish a response to the report and consider its findings as part of their future work programme and priorities. This will include consideration of how to monitor delivery of the actions identified and the expected impact on improving outcomes for children and young people.” I’ll try to keep you posted as that happens.

Welsh lessons

On By Iain NisbetIn Additional Support Needs, ASL Review, School EducationLeave a comment

So, I came across an article on Special Needs Jungle on the new Additional Learning Needs and Education Tribunal (Wales) Act 2018, which came into force on 1 September 2021. This seems to represent a sweeping change in the special educational needs framework (now to be known as additional learning needs). You can read about the changes here: The new “rights-based” Additional Learning Needs system in Wales

Welsh Government Factsheet

Based on what I have read, there are some interesting and welcome features in this new legislation:

  • Covers ages 0 to 25, as opposed to 3-18 (roughly) in Scotland
  • A single statutory plan for everyone with additional learning needs, as opposed to a tiny proportion who fit with the arcane criteria for a Co-ordinated Support Plan (CSP)
  • A focus on local resolution of disagreements, backed by wide and consistent rights of access to the Education Tribunal for Wales
  • A “whole system” approach, including external agencies and the stages before and after school
  • A Code of Practice which embeds principles from the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities

As you know, the ASN Review is now in its implementation phase, and we are currently waiting for the review on CSPs to report and a revision to the Code of Practice (I think). So, plenty of opportunities to adopt some of these ideas from Cymru.

Image by Pete Linforth from Pixabay

Reasonable adjustments for schools in a time of pandemic

On By Iain NisbetIn Additional Support Needs, Equality Act 2010Leave a comment

Schools have had a duty to make reasonable adjustments for disabled pupils since amendments to the Disability Discrimination Act 1995 came into force in 2001.  These duties were later expanded to include “auxiliary aids and services”.  The phrase “reasonable adjustments” is fairly well known by now, but prompts the question – “what is reasonable?” and specifically, what might be regarded as reasonable in the particular circumstances of a global pandemic crisis.

Overview of the legal framework

Part 6, Chapter 1 of the Equality Act 2010 is the part of the Act which applies to schools.  It applies to all schools in Scotland, i.e. public schools (those managed by a local authority); independent schools; and grant-aided schools (those receiving specific direct Scottish Government funding).

The legal duties rest with the responsible body for the school.  In the case of public schools, this is the local authority as a whole – an important point when the discussion turns to funding and resources.  For independent or grant-aided schools, the managing body (e.g. a board of trustees or SCIO) is the responsible body.

The Equality Act 2010 applies across all nine “protected characteristics”, but there are two types of discrimination which only apply in relation to disability.  These are the reasonable adjustments duty (Section 20) and discrimination arising from disability (Section 15).

Reasonable adjustments

In the case of disabled pupils and schools, it is only the first and third requirements of the reasonable adjustments duty which applies.

The first requirement arises where a “provision, criterion or practice” (PCP) places a disabled person at a substantial disadvantage.  The requirement is to take reasonable steps to avoid that disadvantage.  The EHRC’s Technical Guidance for Schools in Scotland gives the example of a school policy forbidding the use of external USB devices with school computers.  In the example the school amends the policy so that a disabled pupil can be given a login that will allow him to attach an adapted keyboard in class. (para 6.9)

The third requirement arises where, without an “auxiliary aid or service,” a disabled person would be at a substantial disadvantage.  The requirement is to take reasonable steps to provide the auxiliary aid or service in question.  The Technical Guidance gives the example of a school providing a coloured plastic overlay sheet for a pupil with dyslexia.

The second requirement concerns substantial disadvantage which may arise because of a physical feature.  The schools duties do not include a requirement to remove or alter physical features of the school for disabled pupils.  However, there is a planning duty contained in the Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002 which requires responsible bodies for schools to set out their plans to improve access (including physical access) to the school, on a three year cycle.

Discrimination arising from disability

This type of discrimination occurs where a disabled pupil has been treated unfavourably, because of something “arising in consequence of” pupil’s disability unless that treatment is a “proportionate means of achieving a legitimate aim”.

Unfavourable treatment is a fairly broad category and (unlike other types of discrimination) does not require a direct comparison.  That is, there is no need to find someone who has been treated more favourably than the disabled pupil.

Recent cases at the Tribunal have dealt with exclusion from school, the use of physical restraint and a refusal to allow an additional year at school as unfavourable treatment.

In cases where the unfavourable treatment is admitted or established, the responsible body may argue that the treatment was not unlawful as it was a proportionate means of achieving a legitimate goal.  Often the aim pursued is self-evidently legitimate, and the question is then whether the treatment in question was a proportionate means of pursuing that goal.

The Technical Guidance gives an example (at para 5.47) of a pupil excluded from school meals because she found queueing distressing.  There may be a legitimate goal in this case, but if there are less restrictive means of achieving that goal (e.g. could the pupil be allowed to go straight to the head of the queue?) then the responsible body will struggle to show that the treatment is justified.

Overlap with additional support needs framework

The Equality Act 2010 is not the only piece of legislation which may apply, as disabled pupils may also have “additional support needs” in terms of Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004.  There are several areas in which there is an overlap between these two legal frameworks.

It is worth noting, for example, that neither the definition of additional support needs, nor the definition of disability require a formal diagnosis.  Both Acts are more focused on the day to day experience of the individual pupil.  Indeed, the definition of additional support needs specifically includes pupils who require additional support “for whatever reason”.

The First-tier Tribunal for Scotland’s Health and Education Chamber has jurisdiction for both types of case, and can join cases together where this is appropriate.  For example, in a case involving support for a disabled pupil to access an after school guitar club, the Tribunal considered the matter as a failure to comply with the child’s CSP and a reasonable adjustments case at the same time (cf. “Landmark victory for disabled pupil”, Daily Record 19 June 2013)

Issues arising during the Covid-19 pandemic

Questions of reasonable adjustments and disability discrimination arise in school even when there is no global pandemic to complicate matters.  However, there have been some specific issues arising which relate directly to the Covid-19 pandemic and the measures taken in response.

  • Some auxiliary services which required close contact with staff were restricted or ceased altogether (e.g. personal care needs, communication support needs).
  • Some auxiliary aids / assistive equipment which required handling (and therefore cleaning) were removed, or were available only on a restricted basis.
  • There was not consistent application of guidance on which children with additional support needs or disabilities could have access to learning hubs during periods of school closure. Disagreements arose as to who was regarded as “vulnerable”.
  • Some pupils required reasonable adjustments in order to access online learning.
  • Legal authority for the closure of schools – Educational Continuity Directions – was not in place at first.  The directions disapplied some of the ASL legislation, but only in a limited fashion.
  • There are ongoing issues relating to pupils who have missed education / transition planning, and reasonable adjustments may be required for disabled pupils.
  • Some disabled pupils found that access to online learning suited them well, and the return to in person lessons has been difficult, or impossible.  Reasonable adjustments may be required in terms of delivery of the curriculum in new and innovative ways.

Recent Tribunal cases

During the pandemic the Tribunal, after a short period in which only urgent cases were progressed, has adapted quickly and well to online hearings and electronic case papers.  There is no current backlog and cases (including disability discrimination cases) continue to be heard and determined.

Over the last academic year (2020-21) the Tribunal has considered disability discrimination cases which have covered a wide range of topics including: differentiation of the curriculum, subject choices in the senior secondary stages, exclusion from school, requests for additional time at school, specific strategies for addressing dyslexia, and the use of physical restraint. Few (if any) were directly related to the pandemic, but that is the context in which they took place.  To the extent that it was considered, it is reassuring to note one Tribunal’s comments in relation to transition planning:

“the COVID-19 pandemic does not remove the obligations of the responsible body to comply with the transition regulations.”

Image by Hatice EROL from Pixabay

Programme for Government 2021-22

On By Iain NisbetIn Additional Support Needs, ASL ReviewLeave a comment

The Scottish Government published its programme for government this week. I thought I’d take a quick look at what it says about additional support needs. There is a whole section on education, of course, and much of that will be relevant to all pupils (including those with additional support needs). There are also specific commitments in relation to care experienced pupils and those who are socio-economically disadvantaged. Many of these pupils would fall within the definition of “additional support needs” although that is not always as well recognised as it ought to be.

However, in terms of a specific mention of additional support for learning, we find it in Chapter 2:

We will act to close the gap for children and young people with additional support needs, developing a new approach for how their achievements and successes are recognised, and fully implementing the findings of the Additional Support for Learning (ASL) Review. We will ensure there is appropriate career progression and pathways for teachers looking to specialise in Additional Support for Learning – with the intention that this results in an increase to the number of teachers who specialise in ASL – and explore options for the development of an accredited qualification and registration programme for Additional Support Needs assistants with final proposals to be brought forward by autumn 2023.

A Fairer, Greener Scotland: Programme for Government 2021-22

This is, as others have commented, nothing new. The Scottish Government have already committed to implementing the recommendations of the ASL Review, and the specific commitments about recognising and celebrating wider achievement, providing an ASL-specific career path for teachers, and accrediting ASN assistants, are all taken from that self-same review. Indeed, we are shortly due ASLIG‘s first annual report on the implementation of the recommendations of the ASL Review.

More on that as it becomes available.

Potential Energy (Conclusion)

On By Iain NisbetIn Additional Support Needs, ASL Review, School EducationLeave a comment

So, to recap…

Back in June 2020, the report of the independent review of the implementation of Additional Support for Learning legislation in Scotland was published.  The review was chaired by Angela Morgan, and the report, which is worth reading in its entirety, is titled “Support for Learning: All our Children and All their Potential”.

A formal response from Scottish Government and COSLA was issued, which accepted all of the recommendations (save for those which required external input, e.g. involving the Universities delivering initial teacher education) and set up a monitoring framework.

What did Children and Young people tell the Review?

The report begins with a statement of what children and young people might think about the implementation of the law on additional support needs. This is, undoubtedly, a very good place to start. However, it also laments the smaller than hoped for numbers of young contributors to the review.

The Young Ambassadors for Inclusion provided the headlines for this section of the report, highlighting from the outset: “Meaningful relationships between children and young people and staff are important for learning;”

This is a key point, which the review returns to time and time again.

Children and young people also underlined the importance of “willingness to adapt teaching methods to children and young people’s learning styles” and the importance of school being a safe place for them.

Other points noted by the younger contributors included:

  • school staff need to have more knowledge and understanding of additional support needs;
  • the ability and capability of pupils with additional support needs must not be underestimated;
  • more understanding and empathy from peers is needed;
  • timely (and, I presume, effective) responses to bullying are important;
  • consistency of support is required; and
  • communication needs to improve.

Participation

Central to all of this is involving children and young people with additional support needs:

“Children and young people have their own views on what works for them and what kind of support they need.”

For children aged 12 to 15 with additional support needs, My Rights, My Say provides free, independent advocacy to assist children in making use of their legal rights under this legislation.  However, that is only the tip of the iceberg, and pupil participation needs to be embedded within the education system.

Indeed, the first, and overarching, recommendation from the review is on Children and Young People’s Participation:

“Children and young people must be listened to and involved in all decision making relating to additional support for learning. Co-creation and collaboration with children, young people and their families will support more coherent, inclusive and all-encompassing policy making, which improves implementation, impact and experience.”

The good practice of the Tribunal in this area is specifically noted elsewhere in the report: “the needs and preferences of the small number of children and young people who engage with the Tribunal, are evident in the detail of the architectural and interior design of the Tribunal offices, and the operational processes developed to reduce stress and distress.”

Resources – and relationships

The ASL review does not shy away from difficult issues, nor from stepping beyond its strict boundaries when it is necessary to do so.  It is does therefore, highlight the many concerns that exist around funding for additional support for learning as well as the impact of pressure on local authority resources more generally (the term “austerity” is used seven times in the report).

This was also a point that was made by the children and young people who contributed to the report: “Additional Support for Learning needs to be adequately funded to ensure everyone gets the support they need, when they need it.”

The report therefore recommended that its own findings are considered as part of the recent Audit Scotland thematic review of Additional Support for Learning.

However, as important, if not more so, are the staff resources actually delivering the support to children and young people day by day.  The commitment and understanding of those staff and the quality of the relationship between staff, pupil and parents can make or break the educational experience.  Parents contributing to the review spoke of the importance of a professional who “just gets it”.

Time and time again, the review returns to the importance of relationships.  Indeed, two of the report’s nine themes have “relationships” in the title.  Especially in those chapters, but also throughout the report, the fundamental importance of honest trusting relationships is stated again and again.

While this is something that can be taught (and learned), it is much more difficult to legislate for, let alone enforce.   

The Tribunals (and those of us who practise within the Tribunal jurisdictions) have a part to play.  Indeed, the review notes that “it is essential that rights and associated processes for .. the Tribunal should be clear and understood and barriers to access removed”, while also recognising the heavy drain on resources (both financial and emotional) that it can be for all involved. 

Ultimately, it is the success or otherwise of the measures and recommendations from the report as a whole which will determine which cases (and how many) still require to be adjudicated in this way.  The first report on progress against the various recommendations is due from the Additional Support for Learning Implementation Group (ASLIG) in October 2021.  It is important that the report is not just accepted, but actually leads to significant and lasting change for the children and young people whose interests and rights lie at the heart of it.

This article first appeared in the May 2021 newsletter of the Health and Education Chamber of the First-tier Tribunal for Scotland.

Image by LeoNeoBoy from Pixabay