Mainstreaming, I presume … (Part 1)

In March of this year, the Scottish Government published revised guidance on the presumption of mainstreaming.  It is now November, and I have not yet blogged about it (although I did post my consultation response on the draft revised guidance).  I think my inaction may be due to the size of the task, so I have decided to break it down into smaller chunks, and deal with it a bit at a time.

The Legislation

We’ll start with what the law says about this.  Introduced as an amendment during the passage of the Standards in Scotland’s Schools etc. Act 2000, the ‘presumption of mainstreaming’ is found in Section 15 of that Act.

The phrase ‘presumption of mainstreaming’ is an odd one to start with.  It is not used in the legislation at all.  The crossheading used in the Act is “Requirement for mainstream education” and the section heading is “Requirement that education be provided in mainstream schools”.  In legal terms, there is no such thing as a mainstream school, and so the section itself, as we will see, takes the form of a prohibition on providing education in special schools (with some exceptions).

Interestingly, the guidance itself takes a slightly different title: “Guidance on the presumption to provide education in a mainstream setting“.  So, for the same single section we have: mainstream education, mainstream schools and mainstream setting.  What the difference is between these three, if any, is not clear.

The Section itself says this:

15 Requirement that education be provided in mainstream schools

(1) Where an education authority, in carrying out their duty to provide school education to a child of school age, provide that education in a school, they shall unless one of the circumstances mentioned in subsection (3) below arises in relation to the child provide it in a school other than a special school.

(2) If a child is under school age, then unless one of the circumstances mentioned in subsection (3) below arises in relation to the child, an education authority shall, where they—
(a) provide school education in a school to the child, provide it in; or
(b) under section 35 of this Act, enter into arrangements for the provision of school education in a school to the child, ensure that the arrangements are such that the education is provided in, a school other than a special school.

(3) The circumstances are, that to provide education for the child in a school other than a special school—
(a) would not be suited to the ability or aptitude of the child;
(b) would be incompatible with the provision of efficient education for the children with whom the child would be educated; or
(c) would result in unreasonable public expenditure being incurred which would not ordinarily be incurred,and it shall be presumed that those circumstances arise only exceptionally.

(4) If one of the circumstances mentioned in subsection (3) above arises, the authority may provide education for the child in question in a school other than a special school; but they shall not do so without taking into account the views of the child and of the child’s parents in that regard.

The legislation is fairly clear on its expectations, and it is fair (to my mind) to describe this as amounting to a ‘presumption’ of mainstreaming.

One interesting quirk of all of this is that the Education (Additional Support for Learning) (Scotland) Act 2004 – which postdated this legislation coming into force – changed the definition of “special school” – which effectively changed the scope of this duty.

Section 29(1) of the 2004 Act, defines ‘special school’ as

(a) a school, or

(b) any class or other unit forming part of a public school which is not itself a special school,

the sole or main purpose of which is to provide education specially suited to the additional support needs of children or young persons selected for attendance at the school, class or (as the case may be) unit by reason of those needs.

So a pupil who attends a Language and Communication Unit (for example) which sits within a mainstream school, is not being educated in a mainstream setting or receiving a mainstream education, according to the Act – regardless of how many opportunities for joining in activities with mainstream peers may be offered.

The Act also does not address situations in which there may be a split placement.  Is a pupil who attends a mainstream school part-time and a special school part-time being educated in accordance with this statutory requirement, or not?

Finally, the presumption of mainstreaming appears as a ground of refusal in the legislation concerning placing requests (Schedule 2 of the 2004 Act).  Ground for refusal 3(1)(g) applies where the ‘specified school’ (i.e. the one requested by the parent)  is a special school, if placing the child in the school would “breach the requirement in section 15(1) of the 2000 Act”.

As set out in the recent Upper Tribunal case of Midlothian Council v. PD, this effectively means that, for a parent to be successful in a placing request for a special school, they will have to show that one or more of the exceptions ( a to c, above) applies.

That more or less covers the legislation.  Next up … Inclusion and the presumption.

Image by Gerd Altmann from Pixabay

Case summary – Midlothian Council v. PD (Upper Tribunal for Scotland)

Since the beginning of 2018, further appeals in additional support needs cases go from the Tribunal to the Upper Tribunal for Scotland.  It has taken until now, however, for a case to actually get as far as that and yield a decision for us to look at.  Let us set aside for the moment my own personal disappointment that it was not one of my cases, and the fact that it is only a determination of the question of permission to appeal, and see what the case actually says.

The case in question is Midlothian Council v. PD [2019] UT 52 (PDF) and it is an appeal against a decision of the First-tier Tribunal for Scotland (Health and Education Chamber) to grant a placing request appeal in favour of the appellant (the parent of a child with additional support needs).

Continue reading “Case summary – Midlothian Council v. PD (Upper Tribunal for Scotland)”

Children's Rights, Inclusion, Equality

A complex additional support needs strategy (overview)

The Scottish Government recently published “The Right Help at the Right time in the right place” – Scotland’s Ten Year Strategy for the Learning Provision for Children and Young People with Complex Additional Support Needs.

The Ten Years in question are 2017-2026, with the commencement of the strategy being taken as the date that a draft was published for consultation – which is an interesting approach!

There is no separate legal definition of the term “complex additional support needs” and (perhaps wisely) this strategy does not attempt to come up with a definition of its own.  Instead, there is a “working description” outlined on p9, which includes:

  1. children and young people with a Co-ordinated Support Plan (CSP);
  2. children and young people at stage 3 or 4 of an education authority’s staged intervention model;
  3. children or young people who attend a grant-aided or independent special school.

It is also worth noting the descending capitals in the title, with “Right Help” being followed by “Right time” before finally giving way to the “right place”.  Does this imply an order or priority or importance?  Or, am I reading too much into things?

Context for the strategy

This strategy fits within the Scottish vision for inclusive education, which reads:

Inclusive education in Scotland starts from the belief that education is a human right and the foundation for a more just society. An inclusive approach which recognises diversity and holds the ambition that all children and young people are enabled to achieve to their potential is the cornerstone to achieve equity and excellence in education for all of our children and young people.

Inclusive practice is defined by reference to four key features of inclusion:

  • Present;
  • Participating;
  • Achieving;
  • Supported

You’ll recognise these from the revised guidance on the presumption of mainstreaming.

The big question behind all of this is funding.  Specifically £11 million.  Which is what the Scottish Government currently spends on the grant-aided schools (Harmeny, East Park, Royal Blind School, Donaldson’s, Corseford, Stanmore House, and the Scottish Centre for Children with Motor Impairments (SCCMI)) and three national services (Enquire, CALL Scotland and the Scottish Sensory Centre).

The strategy is all about commissioning services, and seeks in particular to ensure that “the impact of any service commissioned results in capacity building across local authorities as well as at  national level,”.  This suggest a move away from funding schools, and towards funding research, professional development and outreach services.

Next Steps

To sit alongside this document, an Operational Commissioning Strategy is being prepared.  This will complement the Ten Year strategy, and is to be published  “in late 2019”.

The Commissioning process will have heavy involvement from the third sector who – it is anticipated – will take a lead in applying for funding and delivering services.  Other organisations or partnerships may also apply for funding.  Any change to the current funding arrangement will be introduced in such a way that it will not prejudice placements of children and young persons already support by the existing recipients of funding.

As I mentioned earlier, professional development may well be a key plank of this strategy as it is implemented.  Indeed, the strategy states that “By 2026 there should be a well-established national leadership programme at post-graduate level, which addresses the requirements of effective leadership in the context of schools and services for children and young people with complex additional support needs.”

Parental engagement

Parental engagement is also mentioned throughout the strategy.  A new resource “Supporting Disabled Children, Young People and their Families” was put out for consultation in April 2018, and highlights good practice on rights and information, accessibility of support, and transitions.

The Scottish Schools (Parental Involvement) Act 2006 places a specific duty on local authorities to consider how their parental involvement strategies make provision for parents of children with complex additional support need.  The Scottish Government will include specific guidance on this point as part of refreshed national guidance on parental involvement.

Children’s Rights

The strategy also makes passing reference to children’s rights, and expresses a desire that a positive culture, in which children are welcomed, nurtured, listened to, and have their views heard and their rights protected, is promoted in Scotland.

The changes to the Education (Additional Support for Learning) (Scotland) Act 2004 for children aged 12-15 is highlighted, as is the children’s support service, My Rights, My Say.

A version of the strategy which is accessible for children and families will be made available in “late 2018”.

Transition Period

The proposal here is for a “phased release of funding from the current commitments”, with the grant-aided special schools potentially having to adapt to a new funding landscape in which they access funding on a different basis – or not at all.

An evaluation framework for the strategy is to be developed, with annual reporting against that framework from 2021.

Conclusion

Much detail still to follow, including the Operational Commissioning  Strategy and the practice of education authorities in commissioning in future.  Whether this will have an impact of statutory placing requests, or planning documents, for example, will remain to be seen.

Additional Support Needs Update (Issue 5)

The latest newsletter is now available to download. Do please read it, share it and subscribe using MailChimp for future editions.

This edition looks in particular at the incorporation of the UN Convention on the Rights of the Child into Scots law, with the support spotlight this edition on Dekko Comics.

Do let me know what you think about the newsletter in the comments.

Additional Support Needs Update (Issue 5)

 

Belt up in the back!

Back to school, and the return of the school run.  For many children this will mean travelling in vehicles (usually buses or taxis) arranged for them by the school or education authority.

This school year marks the beginning of the requirement for the publication of annual seatbelts statements.  As of 1 August 2019 (or as soon as reasonably practicable thereafter) each school authority (i.e. education authority, proprietor of an independent school, or managers of a grant-aided school) must publish a seatbelts statement. This sets out what steps the authority has taken to comply with the seatbelts duty and to promote and to assess the wearing of seat belts by pupils carried by the authority’s dedicated school transport services.

The principal duty, which has been in force since 1 August 2018 for new school transport contracts, and will apply from 1 August 2021 for any remaining existing school transport contracts is as follows:

A school authority must ensure that each motor vehicle which the authority provides or arranges to be provided for a dedicated school transport service has a seat belt fitted to each passenger seat.

Section 1, Seat Belts on School Transport (Scotland) Act 2017

This covers both home/school transport and transport used for school trips, sporting events, residentials etc.

The Scottish Government has published guidance for schools: Seat Belts on School Transport (Scotland) Act 2017 – Guidance – which includes a template for the annual seat belt statement.

Of course, pupils with additional support needs make up a goodly proportion of those requiring school transport.  The guidance notes that:

Some pupils travelling on dedicated school transport may need specialist provision, such as smaller children needing a height-adjustable seatbelt, adjustable straps, lap belts, or adaptations which are required because a young person has Additional Support Needs. The Scottish Government recognises that school authorities, particularly local authorities, are better placed to conduct needs assessments in line with their existing obligations regarding education provision more generally and to make provision or enter into contractual arrangements to allow for this.

There’s not much in the guidance on this topic (in fact, it’s basically just this) but there are two assumptions which seem to run through this paragraph.  First, school authorities should conduct needs assessments in relation to adaptations required for pupils with additional support needs to use school transport.  Second, those adaptations should be made (either directly, or by ensuring that any contract for transport requires them to be made).  This is broadly in line with the reasonable adjustments duty for disabled pupils under the Equality Act 2010.

 

Included, Engaged and Involved Part 1

New Attendance Guidance – is it any good?

Last week the Scottish Government published revised guidance on school attendance.

The guidance is called Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools.  As the name suggests, there is an immediate link being made here with school exclusion – Part 2 of the “Included, Engaged and Involved” is the exclusions guidance (which is, by and large, very good).  Anyone who has read the Not Included, Not Engaged, Not Involved research will know the very real overlaps between non-attendance at school and informal exclusions from school for disabled pupils / pupils with additional support needs.

I come across issues of attendance and non-attendance in my capacity as a solicitor and also as a member of a local attendance council for a Scottish local authority.  More often in the first capacity, the situation is that a child with additional support needs is “not coping” with school and this is manifesting itself in behaviour which makes it not safe for them to attend, or in a refusal to attend school – often expressed in very definite terms.

Note already the terminology used – it is the child who is not coping, rather than the school environment (say) or teacher practice (for example) which requires amendment.

Pupils with additional support needs have a lower rate of attendance than pupils with no additional support needs, with the difference being particularly stark in mainstream secondary schools (88.6% compared to 92.1%) 2017 stats.  Given this known disparity, it is disappointing that the section on Additional Support for Learning occupies half of one page (in a fifty page document).  There are four paragraphs, three of which explain what additional support needs means as a term and a little bit about Co-ordinated Support Plans.

The other paragraph, however, does sort of get to the heart of matters (in all fairness):

Providing additional support may help children and young people to engage more fully with school and promote good attendance. 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.

My concern is that this gets lost in a document which has much more to say about the traditional means of responding to absence: work being sent home; attendance orders; references to the children’s panel; and prosecution of the parents of the absent child (five pages devoted to the “Measures for compulsory compliance” appendix!).  None of which is helpful or effective in relation to a child whose autism means that they are unable to function effectively (let alone learn) in the busy environment of a large mainstream school.  These systems were set up decades ago to deal with truancy and are ill-suited to other purposes.  Further, once you are in the enforcement process, it is difficult to get out.

Fortunately, the Tribunals – and the Court of Session, in the 2018 Inner House case of City of Edinburgh Council v. R, may take a more considered view of this type of case.  The case deals with some fairly technical matters under the Equality Act 2010, but ultimately has no difficulty with the Tribunal’s finding that a CSP for a disabled child refusing to attend school (for reasons arising from that disability) which basically says the school can do nothing until the child attends school – was inadequate, detrimental and discriminatory.

 

Learning Disability Week 2019

This week is Learning Disability Week 2019!  This year, the theme is community.  The campaign provides an opportunity to celebrate the contribution of people with learning disabilities to their communities while also raising awareness of some of the barriers they can face in doing so.

As the Scottish Commission for Learning Disability highlight:

Communities are at their best when everyone is active…connected…and feels included.

At their best communities – including learning communities – provide something for everyone to benefit from, boosting wellbeing, preventing loneliness and isolation, and improving outcomes.

Inclusion is the overarching approach adopted in schools in Scotland – with the presumption of mainstreaming central to that policy.  Although this policy has many detractors if a recent study is to be believed, when it works, this inclusive ethos enables children with learning disabilities to play an active part in their school communities. The Additional support for learning: experiences of pupils and those that support them report found that most pupils with additional support needs at mainstream schools felt they had lots of friends, that it was easy to make friends, and that they were included in the life of the school.

By educating pupils who have learning disabilities and those who do not side by side, friendships and support networks can blossom between children who may not have crossed paths in previous generations.

There is still, however, work to be done.  Keys to Life is Scotland’s learning disability strategy.  It recognises learning as one of the strategic priorities, and highlights the following:

  • Teachers have a pivotal role in securing positive experiences for people with learning disabilities.
  • Many teachers don’t have the skills and resources they need to support pupils with learning disabilities.
  • Testing and attainment structures do not reflect the potential of children with learning disabilities and how they can succeed.
  • Transition periods are particularly challenging for people with learning disabilities.
  • There are a lack of appropriate choices for people with learning disabilities at school and college.

The rights that pupils with learning disabilities have under both the Education (Additional Support for Learning) (Scotland) Act 2004 and the Equality Act 2010 should assist in tackling some of these issues, but that does rely on an increased awareness of those rights among educators, parents and pupils.

A school is at the heart of its community, and by adopting an inclusive ethos, properly supported, they can be instrumental in building a genuinely inclusive school experience for all pupils.

Full Disclosure: I am a board member of the Scottish Commission for Learning Disability.

Deaf Awareness Week 6-13 May 2019, Celebrating Role Models

The rights of deaf pupils in Scotland’s schools

In this, my second blog post to mark Deaf Awareness Week 2019, I wanted to look at the rights of deaf pupils at school.  What are those rights, and how does that translate into actual support for deaf pupils in reality?

A child or young person has additional support needs if they require additional support in order to benefit from school education (Section 1, Education (Additional Support for Learning) (Scotland) Act 2004).  This applies to all children and young people for whose school education a Scottish education authority are responsible.  So, anyone at a local authority school or nursery, or placed at an independent or grant-aided special school by their local authority.

The type of additional support which may be required will vary from one deaf pupil to another, but the education authority has a duty to make “adequate and efficient” provision for those needs, whatever they happen to be (Section 4(1)(a) of the 2004 Act).  The Code of Practice, for example, makes specific reference to support from a “peripatetic teacher of the deaf” (Chapter 2, para 13).

Also of relevance is the Equality Act 2010, which imposes a reasonable adjustment duty on schools in relation to disabled pupils – including deaf pupils.  This duty applies to all schools in Scotland, whether they are public schools, grant-aided schools or independent schools. Again, what constitutes a reasonable adjustment for one deaf pupil will not necessarily mean that it is appropriate for another. It all depends on the individual child or young person, their needs and their preferences.

The Technical Guidance for Schools in Scotland does have some useful and instructive examples.  At para 6.40, there is an example of a deaf pupil who reads lips – in that case “a reasonable adjustment would have been to train all staff to ensure that they face the pupil when speaking to him”.  At 6.48, a list of potential reasonable adjustments includes “Assistance from a sign language interpreter, lip-speaker or deaf-blind communicator”.

Whether relying on the rights found in the 2004 Act or the 2010 Act, deaf pupils and their families have access to various dispute resolution mechanisms, including mediation, independent adjudication and the Health and Education Chamber of the First-tier Tribunal for Scotland (also known as the Additional Support Needs Tribunal).

I spoke to  Alasdair O’Hara, Head of Policy and Influencing at the National Deaf Children’s Society (Scotland) , in order to get an idea of the current picture of support for deaf pupils in Scotland’s schools:

Deafness isn’t a learning disability and we know that deaf children can do just as well in life as any other child, so long as they get the right support.

Deafness is a low incidence need with 87% of deaf children and young people educated within mainstream schools, meaning those professionals and teachers that support deaf pupils often require access to specialist expertise such as Teachers of the Deaf.

The latest Scottish Government data shows that deaf young people are now 30% less likely to collect Highers or Advanced Highers than their hearing classmates, with only 42% deaf young people collecting the qualifications, compared to 60% of their classmates.

The data also shows that 10% of deaf children will now leave school with no qualifications at all, and are half as likely to go to university as their hearing friends.

To work towards closing this unacceptable attainment gap, other simple improvements can be made in mainstream education settings. Good classroom acoustics, deaf pupils having access to technology and ensuring teachers are deaf aware and know how to use the technology correctly are all vital in supporting a deaf child’s learning.

This tells me that while there is a good level of inclusion for deaf pupils within mainstream schools, more could still be done to ensure that there is a level playing field, allowing them to access education on the same terms as their hearing peers.  Last year, the Tribunal reported only one case which concerned a deaf pupil.  Where additional support and/or reasonable adjustments required are not in place, pupils and parents alike should be made aware of their rights – and how to enforce them.

Deaf Awareness Week 6-13 May 2019, Celebrating Role Models

Deaf Awareness Week 2019

Today marks the start of Deaf Awareness Week – a week aimed at promoting the positive aspects of deafness and the benefits of social inclusion. Organised by the UK Council on Deafness, this annual campaign brings together all organisations that work in the field and highlights the wide range of support available for deaf people and their families and friends.

This year’s theme is ‘celebrating role models’ across all sectors – with a different focus each day. Today is the turn of ‘Education and Employment’, so it seemed apt that I take the opportunity to recognise those that have, and continue to, inspire and educate me.

As many of you will know my work often sees me advocating for the rights of children with additional support needs, including those who are deaf. Deaf children have the right to additional support to enable them to benefit from school education.  They are also entitled to reasonable adjustments which minimize or remove disadvantages arising from their disability while at school.  But these rights mean little without individuals committed to making them a reality.

I have recently had an opportunity to work alongside the staff and management at Donaldson’s School – and have heard from parents about the excellent work they do with Deaf pupils who have autism or other additional support needs as well.

I also continue to work with the tireless family support workers at NDCS Scotland, who provide a national support service to families of deaf children throughout the country.  Their commitment, knowledge and dedication is much appreciated by the families I know who have benefited from their input.

And, of course, there are teachers in classrooms across Scotland, implementing small (and not so small) changes which positively impact the lives of deaf children, and those with other additional support needs.

Who are your education role models?

Committee Correspondence to John Swinney, Cabinet Secretary for Education

Our collective judgement is that the Education (Scotland) (Additional Support for Learning) Act 2004 (as amended) is sound and fit for purpose. We are proud that Scotland has such progressive legislation in place.

So said the Scottish Government’s Advisory Group on Additional Support for Learning (AGASL) in January this year. At the same time, they recognised the need for a review of its implementation in practice.

Not long after that, a motion was debated and passed by the Scottish Parliament to undertake a review of the presumption to mainstream, and how it is working in practice. It is unclear when this review will take place, or indeed how long it will take, but in a letter to John Swinney, Secretary for Education and Skills, on 9th April 2019 the Education and Skills Committee gave a clear view that mainstreaming in practice needs support. While endorsing the view of AGASL, the Committee outlined their recommendations for the review, based on research carried out over December 2018 through February and March this year. This involved a call for views, a focus group with parents, young people, school staff and others and meetings with other relevant stakeholders, with the Committee aiming to see how the experiences and perspectives of these groups had evolved since the publication of “How is Additional Support for Learning working in practice?” in 2017.

Disappointingly, the Committee found the issues raised by parents and teachers who submitted to the last inquiry remain relevant today. The Committee called for the 2017 recommendations to be considered in any future review and were conscious that: “the policy to include is having the opposite effect in some circumstances due to a lack of resources”. The issues raised for consideration by the Minister will not be news to regular readers, and included:

  • The Scottish Government should consider ways of improving data gathering on individual school’s approaches to issues such as seclusion, restraint, part-time timetabling, unlawful exclusions, and home-schooling as a last resort.
  • A need for increased awareness raising amongst and support for parents.
  • For a meaningful assessment of trends in staffing levels, it is vital to have statistics that reflect the number of support staff with a specialism in supporting those with additional support needs. Work to standardise the nomenclature used by local authorities is a starting point.
  • A need for a financial review to be undertaken by Scottish Government to ascertain the extent to which education authorities are spending in line with the level of need in their area, and identify authorities who have lower spends.
  • The issues with the implementation of CSPs and the associated impact should be the focus of a stand-alone piece of work.

There was also a suggestion that the definition of what constitutes additional support need has become so broad that its impact has been diluted. This may be contributing to an inconsistency in provision.  For instance, children who have English as an Additional Language are included within the definition. While there was no recommendation associated with this, the Scottish Government were asked to provide their perspective.

The Committee has asked John Swinney to respond to their proposals by 15th May 2019, and I await that response with interest.

Photo Credit: DFM gets to work on education, Scottish Government – released under a Creative Commons Attribution-NonCommercial 2.0 Generic (CC BY-NC 2.0) licence