Additional Support Needs Update (Issue 2)

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

This editions covers: notes on the news; the attainment challenge; meeting children’s healthcare needs in school; school clothing grants; and a spotlight on Enquire.

You can also let me know what you think about the newsletter or its contents in the comments.

The Additional Support Needs Update, Issue 2

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Autism, Disability and School Exclusions

Regular readers of this blog and my Additional Support Needs Update newsletter may recall a case in which a mother successfully claimed against Glasgow City Council for discriminating against her son, who has an Autistic Spectrum Disorder. The nub of that case was that he had been excluded, to the detriment of his mental health, for behaviour related to his disability. The behaviour in question included occasions when he was distressed, and when feeling cornered, he could lash out.

The Tribunal, in that case, was satisfied that the child met the definition of a disabled person for the purposes of Section 6 of the Equality Act 2010. This meant that the protection against discrimination afforded by the Equality Act came into play, and the education authority had an obligation to make reasonable adjustments for him in school.

The reasoning of the Tribunal seems straightforward. The child had a disability, and the behaviours linked with it were protected by the Act. However, as often is the case, the law is not as straightforward as it could be. There are situations where being a disabled person in terms of the Act may not offer universal protection. Although all disabilities should be treated equally, some are more equal than others.

The Regulation 4 exception

Reg 4 of the Equality Act 2010 (Disability) Regulations 2010 sets out conditions that are not to be treated as impairments or disabilities – including things like voyeurism and a tendency to set fires. One such exception at Reg 4(1)(c) is “a tendency to physical .. abuse of other people”. Guidance issued in May 2011 makes it clear that this exclusion applies not only where such behaviour constitutes an impairment in itself, but where it “arises as a consequence of, or a manifestation of, an impairment that constitutes a disability for the purposes of the Act”. In the latter circumstance, the behaviour that falls within the exception will be excluded from protection, but the rest of the effects of the disability will be covered.

Put simply, where your child has a condition which manifests itself in a number of ways, including physical outbursts, they will be protected by the Act except where any discrimination they may experience is as a result of the physical outbursts (if the outbursts amount to a tendency to physical abuse). Those are an excluded condition under the Act.

Even if your child, like the child in the Glasgow City Council case, is excluded because the school environment leads to a violent response, you may find that there is a barrier to challenging that exclusion.

Human Rights for all

You may be thinking that that does not seem in the spirit of the Act – and you would, in my view, be right. Although it was not an argument that ultimately required to be decided in the Glasgow City Council case, it was one I made in front of the Tribunal – in that case and in others.

Now, however, the matter has been put determined in a recent Upper Tribunal decision in England: C & C v The Governing Body of a School (SEN) [2018] UKUT 269.

The child, in this case, had autism, anxiety and Pathological Demand Avoidance (PDA). The appeal concerned a fixed term exclusion from the school for 1.5 days. The reason given for the exclusion was ‘aggressive behaviour’. The First Tier Tribunal dismissed the claim as although it considered that the child generally met the definition of a disabled person, he had been given the exclusion as a result of his ‘tendency to physical abuse’.

The family appealed on the basis that Reg 4(1)(c) should be disapplied to avoid a breach of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 14 provides that the enjoyment of the rights conferred by the Convention should be secured without discrimination. One of the rights covered by the Convention is the right to education (in Article 2 of the First Protocol).

The Upper Tribunal agreed that Reg 4(1)(c) applied to both freestanding conditions as well as conditions arising in consequence of protected impairments. While there may be good social policy reasons to exclude free standing conditions ‘that are not generally recognised as disabilities’, the Secretary of State failed to justify, in the context of education, maintaining a provision:

“which excludes from the ambit of the protection of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special educational provision to be made for them.”

The decision making process was fortified by the belief of officials, set out in a discussion paper in October 2017 and produced to the Tribunal, ‘that there would be fewer exclusions of disabled children from school if regulation 4(1)(c) applied only to free-standing conditions’

For those reasons, the Tribunal found that, in the context of education, regulation 4(1)(c) of the 2010 Regulations violates the Convention, and should not be applied in the circumstances of this particular case.

So, what now?

This is a decision of great significance across Great Britain. In Scotland, exclusion rates for children with additional support needs are twice those of children who don’t require support. In England and Wales, a child with a disability is seven times more likely to be permanently excluded. It is hoped that this judgement will lead to schools thinking twice before resorting to exclusion, and to more appropriate supports being put in place by budget holders at authority and government levels.

The decision does not mean that disabled children cannot be excluded for violent behaviour, simply that the school must be able to justify in law any such exclusions. Education authorities in Scotland should also consider their exclusion practices more generally, as higher rates of exclusion for disabled pupils may leave them vulnerable to indirect discrimination claims as well.

It is encouraging that the Westminister Government seem to be considering an amendment to the Regulation. Hopefully, this judgement will speed that up. With Brexit putting the UK’s commitment to the Convention in doubt, having this concession enshrined in statute would offer some peace of mind to families with disabled children.

Learning Disability Week 2018

It is Learning Disability Week 2018: a week focusing on, and celebrating, the lives and talents of people with learning disabilities in Scotland. The theme this year is “My Generation” – aiming to highlight the experiences of young people with a learning disability, and what changes can be made so that this generation can reach their goals in life.

Education is critical to creating opportunities for children with learning disabilities, and the right support and environment can make all the difference. In Scotland, Section 15 of the Standards in Scotland’s Schools etc. Act 2000 provides children with learning disabilities with the right to be educated in a mainstream school (although there are some specific exceptions) and the education system in Scotland is structured around this concept of inclusive education.

We’ve come a long way

Educating pupils with learning disabilities in Scotland has evolved considerably since the Warnock Report in 1978 – and the passing into law of the “presumption of mainstreaming” did not mark the end of the process. Far from it. Over subsequent years, there has been a progressive increase in the recognition of the rights of all pupils to have fair access to education.

The Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002 introduced the requirement for Accessibility Strategies for education authorities and independent schools, with an emphasis on:

  1. increasing the extent of participation in education;
  2. improving the physical environment of schools; and
  3. improving communication with pupils with a disability.

The revised Scottish Government guidance on Accessibility Strategies is particularly good, and well worth reading.

“..through Curriculum for Excellence, the curriculum in Scotland is recognised as the totality of experiences which are planned for children and young people through their education, wherever they are being educated. This totality includes the ethos and life of the school as a community, curriculum areas and subjects, interdisciplinary learning and opportunities for achievement.

“Disabled pupils have exactly the same curriculum entitlements as their non-disabled peers.”

Accessibility Strategies guidance (Scottish Government, 2014)

The Education (Additional Support for Learning) (Scotland) Act 2004 introduced the concept of additional support needs and aimed to modernise and strengthen the system for supporting children’s learning needs. Alongside this sits the Equality Act 2010 (replacing the Disability Discrimination Act 1995 and others) which makes disability discrimination in schools unlawful.

Importantly, the legislative framework (particularly the Equality Act 2010) aims for the inclusion of pupils with disabilities not just in the classroom, but in the playground, after-school clubs, school social events, school trips etc. Full inclusion in the whole life of the school is the aim.

“the way in which a trip is organised can lead to discrimination if, for example, the necessary reasonable adjustments are not made for a disabled pupil. A school is less likely to discriminate if it plans a trip taking into account the need to include all pupils irrespective of their protected characteristics rather than if it arranges a trip and then tries to adapt it to make it inclusive. ”
Technical Guidance for Schools in Scotland, para 3.10 (Equality & Human Rights Commission, 2014)

Has inclusion been achieved in practice?

The framework for inclusion is in place, and when supported by well-trained teachers, assistants, allied health professional and other external agencies, the benefits to the child and the whole class is manifest.

One family, providing evidence to the Education and Skills Committee in 2017 noted that they were encouraged to pursue mainstreaming for their child with Down’s Syndrome when a young friend pointed out:

“that some young people might also want to meet and help people like our daughter and this made us think of a more positive side to mainstreaming, which meant that others (staff included) might benefit and blossom meeting her”

Four years later they and their daughter have not looked back…

The opportunities now available to her, both socially and educationally, could not have been provided to the same extent had their daughter not attended mainstream school. They certainly would not have been available to her forty, or even twenty, years ago.
There are many successful inclusion stories, but there are also concerns that some children’s needs are not being met in mainstream – and an ever present suspicion that finance, and not inclusion is driving the push to mainstream.

So, what’s next?

The Education and Skills Committee’s recent investigation noted inconsistencies across education authorities and schools. The provision was better in schools whose ethos embraced inclusion and where individual teachers adopted inclusive practices as a matter of course. There was also evidence of children from advantaged backgrounds receiving better support as their parents pushed for identification, and after that the appropriate support.

Education authorities and schools need to have a consistent approach to inclusion. It should not be left to a child’s parents (although their involvement in the system is to be encouraged). In instances where mainstream school is not appropriate, this needs to be identified as early as possible – without waiting for crisis point to be reached.

Resources are always an issue, but the resources need to be spent wisely as well. My own view is that significant additional resources spent now on intensive training and awareness building for front-line teaching staff would pay dividends in the not too distant future.

Scottish Government remain committed to mainstreaming, and inclusion, but are reviewing the best way to put these principles into practice.

In their consultation, which closed for comment in February 2018, they cast light on how they intend to support authorities in this process, by introducing a newly created draft guidance for mainstreaming. According to the Scottish Government:

“This non-statutory guidance will present a vision for mainstreaming, building on the best available evidence on inclusive approaches to education. It will aim to touch upon other, complementary policies as part of a joined-up approach. The guidance has been developed to support all local authorities, all schools, and all teachers and practitioners.”

The four key principles are to:

  • Improve outcomes;
  • Meet the needs of all children and young people;
  • Support and empower children, young people and all those involved in their education; and
  • Outline an inclusive approach which identifies and addresses barriers to learning for all children.

Implementation of the presumption of mainstreaming requires a commitment to inclusive practice. The guidance links inclusive practice with the presumption throughout and includes key features of inclusion and guidance on how to improve inclusive practice in schools. While these could be more strongly worded (and may yet be revised in the final draft), I am of the view that the revised guidance will be an important stepping stone towards a truly inclusive system.

My own response to the Scottish Government consultation on the presumption of mainstreaming can be read elsewhere on this blog.

Additionally, the Scottish Government is researching inclusion in practice to get a wider understanding of the current state of play. It is hoped that the final research report will be available by the end of the summer. Both the consultation responses and the research will be used to inform the final version of the guidance and future policy development and reporting.

Online resources on inclusive education for practitioners are being developed by Education Scotland, along the same lines as the Addressing Dyslexia Toolkit.
These next steps in the journey are of critical importance and all those involved in education must strive to make sure that inclusion is not just jargon, but becomes a daily reality for pupils in every school in Scotland. Children with learning disabilities deserve no less.


I am a trustee of the Scottish Commission for Learning Disability, but this article (as with everything on this site) is a personal view.

Get involved with Learning Disability Week and let as many people as possible know about it by applying the handy Learning Disability Week themed designs from the SCLD website to your social media channels and documents.

Use #LDWeek2018 in your posts to raise awareness and help SCLD to keep all news related to the week in one place!

The Scottish Commission for Learning Disability is

Do Check Plan & Act

Education authorities in Scotland should be paying attention at the back, following a decision under the Equality Act 2010 and its application to the planning of additional support for disabled pupils. A recent Tribunal decision (now upheld on appeal) found that a failure to provide an adequate Co-ordinated Support Plan (CSP) amounted to unlawful disability discrimination by the Council.

The duty to provide a CSP is not found in the Equality Act 2010 but in Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004. The fact that a failure to comply with a duty in this unrelated statute can amount to discrimination is of particular importance – especially for pupils who are both disabled and have additional support needs. Alert readers may recall the case of DM v. Fife Council in which the Council’s failures under the post-school transition duties under the 2004 Act, led to a finding of discrimination under the 2010 Act.

Continue reading “Do Check Plan & Act”

ASN Tribunal launches child centered website

Perhaps anticipating a rush of applications following the recent extension of rights for 12 to 15 year old pupils, the Health and Education Chamber of the First-tier Tribunal for Scotland (Additional Support Needs) has launched its website ‘needs to learn’. And very helpful it is too.

The Additional Support Needs Tribunal is set up to adjudicate on disability discrimination claims relating to school, as well as references made under the Education (Additional Support for Learning) (Scotland) Act 2004.

In Scotland, most children over the age of 12 are deemed to have the capacity to make a disability claim directly, and not rely on their parents to do so on their behalf. For additional support needs references, the process is a bit more complex than that, involving assessment of both capacity and wellbeing. Nonetheless, most pupils aged 12-15 with additional support needs should also be in a position to access the Tribunal directly.

The recent extension of rights for this age group enables pupils to ask their school or local authority if they need extra educational support and, if they do, allows them a say in how that is provided. This places the child front and centre in their education journey.

Equipping children with the information and support required to make a claim or reference to the Tribunal is a critical part of this empowerment. The needs to learn website sets out to do just that.

The website is easy to navigate and is split into to two main sections. One providing general information and the other aiming to guide a child through the steps required to make a claim or a reference.

The information section has helpful contacts, including that of the My Rights, My Say service, that was set up by the Scottish Government at the beginning of the year, along with that of Enquire and the Equality Advisory and Support Service. Importantly this section also explains commonly used legal terms in an attempt to demystify the legal process and explains what happens once a claim or reference has been made. It also outlines all the options available to allow the child’s voice to be heard through the tribunal process.

The remaining part of the site contains practical information to help a child make an application to the tribunal, be that a claim or a reference. This is a great resource for pupils and their parents and carers alike. Even if an appeal is made by the parent on behalf of their child, then the information section will still assist in explaining the process to the child and outline all the ways in which they can participate in it.

There is a very short time limit for making an appeal to the tribunal (two months in many cases). If you think you may have been discriminated against, or are not receiving the right educational support, then please contact one of the organisations contained in the tribunal information section, or a solicitor, as soon as possible.

Mainstreaming, presumably.

The passing of the Standards in Scotland’s Schools etc. Act 2000 brought with it a statutory requirement for education authorities to provide education for all in mainstream schools unless certain exceptions applied. This is known as the “presumption of mainstreaming”.

Since then, there have been many changes in education law in Scotland. As such the legislative framework now requires education authorities to consider a wide range of issues alongside the presumption of mainstream education. When considering placements for children, authorities need to consider: the need to make provision of additional support to children and young people with additional support needs; the need to avoid discrimination (including disability discrimination) and to comply with their public sector equality duty; the need to plan for improving accessibility of all aspects of school life (Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002); and to consider the wellbeing of children and young people (Children and Young People (Scotland) Act 2014 – still to be brought into force).

The Scottish Government remain committed to a presumption of mainstreaming, and this consultation sets out draft guidance for education authorities. According to the Scottish Government:

“This non-statutory guidance will present a vision for mainstreaming, building on the best available evidence on inclusive approaches to education. It will aim to touch upon other, complementary policies as part of a joined-up approach. The guidance has been developed to support all local authorities, all schools, and all teachers and practitioners.”

The four key principles are to:

  • Improve outcomes
  • Meet the needs of all children and young people
  • Support and empower children, young people and all those involved in their education.
  • Outline an inclusive approach which identifies and addresses barriers to learning for all children.

So, does it do that?

The principles outlined above do support a wider goal of inclusion. However, the key features outlined to support these principles often fall short of promoting true inclusion. A strengthening of the wording of the expectations is required to create clear and unambiguous guidance for local authorities.

The guidance does seem to deal in generalities and overlooks the fact that decisions require to be made about an individual and their particular needs and circumstances. Mainstream education requires to be properly supported (and resourced) to ensure it is properly inclusive, while recognising that it will not be the answer for everyone.

My view is that the guidance requires to focus on the needs of the individual child in order to achieve the inclusion goals set out by the Scottish Government.

For further comments on the guidance as currently drafted, please see my full consultation response, below.

Continue reading “Mainstreaming, presumably.”

Long division of power

The consultation on the new Education (Scotland) Bill closed on 31st January 2018. The Scottish Government’s aim was for the consultation paper to set out how the proposed “changes will improve educational outcomes for young people, how they will work in practice, and what legislative changes are needed to enable them to happen.” In short, they invited views on whether the changes would deliver empowered schools and a teacher-led system.

The mechanism for achieving this goal can be found in the raft of powers to be devolved to headteachers in the ‘Headteachers’ Charter’. Currently exercised primarily by the education authority these powers relate to the curriculum, staffing and budgets. The changes also propose the beefing up of parental involvement and engagement; pupil participation and new bodies called Regional Improvement Collaboratives.

While the scope and ambition of the proposals are to be commended, in my response to the consultation paper, I flag genuine concerns as to the division of power, duties and accountability. Empowering schools is one thing, but power without a transfer of legal responsibility creates a vacuum of accountability into which bad decisions could escape unchallenged. Throw Regional Improvement Collaboratives into this opaque accountability mix, and these issues become seriously problematic.

For this and other comments on the effect of the Bill as currently drafted, please see my full consultation response below.

Empowering Schools

The consultation document says that local authorities will retain their “overarching duties” in relation to the provision of education. The fifth paragraph of p7 specifically references the following duties:

  • The duty to ensure the provision of adequate and efficient education in their area (s.1(1) Education (Scotland) Act 1980), having regard to the age, aptitude and
    ability of the pupils (s.1(5) of the 1980 Act)
  • The duty to ensure that school education is directed to the development of the personality, talents and mental and physical abilities to their fullest potential.
    (s2(1) of Standards in Scotland’s Schools etc. Act 2000)
  • The duty to have regard to the views of children and young people in decisions which significantly affect them (s2(2) of the 2000 Act)

There are, in fact, many more duties which apply to education authorities – as I understand it, the legal duties (and legal responsibility) will remain with the
education authority in almost all regards.

The consultation document notes that “In practice, when it comes to actual provision of school education, headteachers and the teachers in their schools carry out
these roles on behalf of the local authority which employs them.” This is true of every legal duty imposed on a local authority and is not a good reason in itself to
consider a transfer of powers and responsibilities.

In fact, as the consultation reads, what is being suggested is that the power to make decisions should be transferred to Headteachers, without also transferring
legal duties, responsibility or accountability as well. There are obvious problems with this separation of power and accountability. For the parent who has a
complaint (or a legal case) in relation to the actions of a headteacher, to whom do they address that complaint. To the headteacher in the first place, perhaps.

Thereafter where? Is there any point in making a complaint about a headteacher to the education authority, if they are not able to direct the headteacher in
relation to that matter? What if the headteacher claims to be following the policy or guidance of the Regional Improvement Collaborative, which is headed by the
Chief Executive of another local authority altogether? Where does accountability lie for the legal responsibilities being devolved?

If power is genuinely to be transferred to individual headteachers, then meaningful (and legal) accountability for the exercise of those powers must also transfer.

Pg 9 mentions a “model of shared accountability” – the danger of this approach is that it can be difficult then to find meaningful redress where problems arise. Unless the Scottish Government actually intend to make each of these three (headteachers, local authorities and regional improvement collaboratives) jointly and severally liable for each others’ acts and omissions, it is difficult to see how this serves to do anything other than obscure where legal responsibility lies.

Headteachers’ Charter

The requirement for schools to work together will be difficult to achieve without first constituting schools as a legal entity with responsibilities all of its own. Has consideration been given to the potential impact of the duty to work collaboratively with other partners on the CSP? Where the collaboration involves a school from another local authority, that may be regarded as an “appropriate agency in terms of s.23 of the 2004 Act. Are the Regional Improvement Collaboratives to be regarded as an “appropriate agency”?

The local authority’s annual statement of improvement objectives, linked with both the school improvement plans and the national priorities. They required to include matters covered by the Equality Act 2010. The local authority will remain the responsible body in law – accountable for Equality matters in relation to each of the schools it manages. Removing that body’s requirement to plan to improve equality as part of an annual planning process is problematic.

Annual statement of improvement objectives also have a requirement re: Gaelic language – where does this responsibility lie now?

Having individual schools create school improvement plans which are consistent with annual improvement objectives set by a larger central body (the education authority) is one thing. Having an even larger central body (a Regional Improvement Collaborative) create a single improvement plan which takes into account and somehow brings together potentially hundreds of different school improvement plans each based on individual local factors seems to me a much more difficult proposition.

Pg 11 states that “local authorities must be able to allocate resource to support the provision of additional support for learning.”. This seems to attempt to draw a
separation between the provision of mainstream education and “additional support”. This is a matter of concern. For one thing, the provision of additional support
is most often done within mainstream schools and carried out by existing school staff (class or subject teachers, support staff etc) using existing school resources. It is both artificial and retrograde to try and separate out “resource to support the provision of additional support for learning” from other resource allocation. To do so is to suggest that additional support is an added extra rather than a core requirement – something to be expected of every school and every teacher – it also undermines the idea of inclusion for pupils with additional support needs.

There are potential difficulties with allowing headteachers to recruit staff, while the education authority remain responsible as employer for performance, discipline or grievance. What happens if the grievance is that the member of staff was not selected for a promotion? Or that they are not adequately supported in their work due to a lack of recruitment to key roles? How does the local authority respond to such a complaint in relation to decisions in which they have had no input?

Pg 13 states that “Local authorities will continue to be responsible for ensuring provision of specialist services and for managing provision of support for learners’ additional needs.” Again, this is a matter of concern. It is unrealistic and a backwards step to try and differentiate “provision of support for learners’ additional needs” in this way.

Additional support is not an added extra rather it is a core requirement – something to be expected of every school and every teacher. It also undermines the idea of inclusion for pupils with additional support needs.

Parental and Community Engagement

Legal duties for working collaboratively with parent councils, and the definition of parental involvement and engagement are said to include a prominent place for
learning in the home and family learning. Is the intention to impose a duty (or expectation) that parents have a duty to engage in family learning in the home? To
do so in a particular way or to a particular standard? For schools to have a role in monitoring or supporting such learning? Such duties will need to be carefully
drafted to avoid creating unrealistic expectations.

Further, one important aspect of parental engagement is the ability to exercise a democratic control on the education authority through local elections. If the
responsibility for children’s education is being dispersed to schools and Regional Improvement Collaboratives, that means that there is little remaining over which
parents (and others) will have the ability to influence by voting.

Pupil Participation

The consultation document notes an intention for general duties on Head Teachers to promote and support pupil participation. However, there is no legal duty to consult with pupils or to hear and take account of their views in relation to these same “specific aspects”. Given that pupils have a right to be consulted on prescribed changes in terms of the Schools (Consultation) (Scotland) Act 2010, and can exercise their own rights in terms of recent amendments to the Education (Additional Support for Learning) (Scotland) Act 2004, my view is that the time has now come to formalise the role of the pupil council, especially for secondary age pupils. Statutory guidance to pupil councils should also be issued and support given to ensure that pupils councils are a genuine means of pupil expression and not just a tick box exercise with parameters set by school staff.

Regional Improvement Collaboratives

Care must be taken in embedding these requirements in legislation that the duties of the local authorities do not become diluted and masked. The collaborative areas are so large that it may be difficult to adopt strategic priorities for improvement that are not very general indeed. The next step down is school improvement planning. Given that so many other relevant plans will remain at local authority level (children services planning, public sector equality duty, accessibility strategies) it may be a mistake to remove the requirement for improvement planning from local authorities – and certainly difficult to retain a sense of local democratic accountability.

Education Workforce Council for Scotlan

It will also be important that as a registration and regulatory body, clear and impartial complaints processes are available and accessible for parents, pupils and others who may have cause to raise concerns about misconduct or competence.

The Education Workforce Council for Scotland is an opportunity to make sure that all those working with children in schools and other educational contexts are properly qualified and trained. There is a danger that specifying “additional support staff” or “ASL support workers” as a separate category gives the impression that responsibility for additional support lies only there. While such workers should certainly be covered, it would be important in terms of professional standards that this responsibility is specified front and centre for all those within the education workforce (of whatever type).

Iain Nisbet, Education Law Consultant

Ring-fencing the changes

On 10th January 2018, amendments to the Education (Additional Support for Learning) (Scotland) Act 2004 came into force, heralding an extension of rights for Scottish teenagers, said to be unprecedented anywhere in Europe. Pupils aged between 12 and 15 now have the right to ask their school or local authority if they need extra educational support, and the right to have a say in how that is provided, advocacy to support them in expressing their views and legal representation at Tribunal should they need it.

To raise awareness and support children through this process providing advice, advocacy and legal representation, a new children’s service called ‘My Rights, My Say’ has been established. Delivery of this service will be through a partnership of Children in Scotland, Enquire, Partners in Advocacy and Cairn Legal.

This a significant development, and one which has been welcomed across the Scottish education community. Concern has been raised, however, as to how this is to be funded. With statistics published by the Scottish Government at the end of last year showing a 55% increase in pupils with additional support needs since 2012 coupled with a perceived downwards trend in investment, that concern is not surprising.

At the same time, the Scottish education system is going through a period of reform, with schools and Head Teachers to be given more freedom to make decisions at a local level. The Education (Scotland) Bill will make Head Teachers responsible for recruitment of school staff, and other budgetary decisions and deciding on curriculum content. While Councils will still have a role in education (including legal responsibility for additional support needs), newly established Regional Improvement Collaboratives will be created to ‘pool and strengthen resources to support learning and teaching in schools’.

In theory, this will provide an opportunity for schools to tailor additional support, but there is also a risk that the system becomes disjointed, and unable to respond effectively to competing demands on resources.

The current draft budget is being debated in parliament, and the question of additional support for learning funding seems to be an issue that is attracting some interest amongst MSPs. The budget contains an allocation of £10m to be provided to charities that support young people with additional support needs; is also includes £120m allocated to pupil equity funding to help raise attainment. However, the Education and Skills Committee are putting pressure on the Government to ring-fence all additional support needs funding for local authorities.

Ringfencing of additional support needs funding allows Scottish Government to control the sums spent on this area.  However, it does not guarantee that the sum ring-fenced will be sufficient to meet all of the needs within one area, nor does it control how or on what that money is spent.  Further it is not always easy to identify what funding is for additional support.  Much additional support is provided by the class teacher – how is this reflected in any ring-fencing?  Do you take a proportion of the teacher’s salary?

Whatever form the revised governance arrangements for Scottish education finally take, the issues of responsibility for additional support needs, and of funding for additional support will remain – like a fiendish Sudoku puzzle – full of numbers and difficult to solve.

Photo Credit: https://www.flickr.com/photos/01-17-05_t-m-b/2156513671

Supporting Children’s Learning Draft Code of Practice (3rd ed) – Consultation Response

This Scottish Government consultation sought views in relation to a draft Supporting Children’s Learning Code of Practice (third edition) 2017 – the statutory guidance for the Education (Additional Support for Learning) (Scotland) Act 2014.  My response to the consultation is below.

Introduction

10 – There is a discrepancy here in how an eligible school child is described.  Here it states that an eligible school child is under school age (i.e. under 5), whereas at Chapter 2, para 14, it states that they will be under the age of 3.  This is confusing and could be better described.

11 – It is important to note that the assessment of capacity and the assessment of impact on wellbeing are two separate tests.  It is not helpful to conflate the two, as here.  A child may have capacity to exercise a right even where it would adversely affect their wellbeing, and vice versa.

Chapter One

2 – Re: foetal alcohol spectrum disorder– the international standard spelling, which the Scottish Government, the BMA et al now use, is Fetal Alcohol Spectrum Disorder.  The following resources could be referred to as being useful for practitioners: NHS Education Scotland’s free on-line course/resource on fetal alcohol harm:  http://www.knowledge.scot.nhs.uk/home/learning-and-cpd/learning-spaces/fasd.aspx.

4 – There is no presumption in law that looked after children require a CSP, simply a requirement to determine if that is the case.

12 – The right to request that an authority determine whether “their child” has additional support needs doesn’t read well in relation to young persons or eligible children, and should be amended.

14 – I am concerned that the term “evidence based” in relation to assessment of capacity will lead to delay.  It should be stressed that an authority will usually know the child well enough to make this sort of determination quickly.  A time limit should be set out in the guidance so that children are not left in limbo being unable to exercise their rights.

Chapter Two

2 – The fact that children do not have to be in school to receive “school education” is a point well worth making here.

4 – Throughout the Code, the references to entitlements under Curriculum for Excellence is very welcome.  The reference to learning being supported by “the parents in the home or their wider community” is not clear whether this is intended to mean:

  • Supported by parents a) at home and b) in their wider community; OR
  • Supported a) by their parents at home and b) by their wider community.

5 – In the final sentence, it is not when the authority have determined that they have additional support needs that a duty kicks in for looked after children, but rather, if they have not determined that the child does not have such needs.

6 – Given that there is a duty on corporate parents to collaborate with each other, is there a case for expanding the definition of appropriate agency to include any agency acting as corporate parent in relation to an individual child or young person?  This can be done by Scottish Ministers by regulation.

9 – Strictly speaking, it is the provision required which is assessed against provision made in mainstream schools in that area, not the child’s needs.  The result of that comparison will determine in law whether the child has additional support needs.  (Also in 10)

14 – See comments on Intro, para 10

Chapter 3

1 – A child belongs to the area in which their parents reside, regardless of whether they also reside there.  As a side note, this can prove difficult where a child’s parents live in different local authority areas.  The law does not distinguish between e.g. resident and non-resident parents for these purposes.

7 – The need for a holistic assessment should her be tied back into the ASL Act, by reference to the authority’s duty to assess for additional support needs, and the parental right to make an assessment request.

8 – The terms “least intrusive and most effective” will often be contradictory.  More effective interventions may also be more intrusive.  A concern about intrusion should only be a concern in terms of interventions which may take place in a family’s home or where they have expressed reservations.  In relation to school based interventions, this becomes an almost meaningless expression, which must not be allowed to be used as an excuse for not making provision of additional support for children or young persons.  The 2004 Act does not have any such principle of non-intervention, indeed quite the reverse.  There is a statutory duty to make provision effective, but none to make it non-intrusive.  At the very least, the terms should be reversed “most effective and least intrusive” is slightly better.

9 – Reference is made to a child’s plan, without setting out the criteria for same.  This may be helpful.

32 – The flowchart at Stage 2 and Stage 3 uses the terminology “Situation not resolved and need for further action identified.”  Section 4 of the Act which sets out the duty for providing support does not require this sort of trial and error approach.  While this may be the way in which a need for support is revealed in some cases, in others it will be obvious at the outset that a child requires multi-agency support.  In such cases, there is no need for the child to start out with a Stage 1, single agency plan (as the flowchart implies).

36 – The Code here states that looked after children are considered to have additional support needs unless they have been “identified as not having them.”  This might be taken to mean that the process of placing a looked after child outwith the scope of the legislation can be done informally, which is not the case.  The phrase “formally determined as not having them” may be better.

40 – Considering advice or information from the local authority’s own social work services may not require consent from parents or young persons under the 2004 Act.  However, this would still amount to a processing of personal data in terms of the Data Protection Act 1998 and the local authority would still have to be able to justify that processing in terms of the grounds provided under that Act.

42 – The requires to assess capacity and wellbeing prior to the exercise of children’s rights are here described as “safeguards”.  This is inaccurate.  A better description would be “barriers”.  Please use this term instead.

“.. neither the child nor the education authority may exercise that right.”  The education authority would never have the right to do so under any circumstances.  This is not a by-product of the assessments.

43 – Given that the assessment requests in Section 8 & 8A overlap, it may be simpler to say that such a request can be made at any time, rather than trying to differentiate the two different sections under which a request can be made.

44 – There is a big jump between the second and third sentence, which could be linked by explaining that in the case of an assessment request which is medical, the authority may seek assistance from the NHS.

51 – It would be helpful to outline how long an education authority should take to respond to an assessment request, and how long to complete the assessment(s) requested.

63 – As before, the Act does not require a trial and error approach if it is clear that the support required by an individual is required from a number of agencies.

65 – While is it accurate that an education authority “are not obliged” to make provision in these circumstances, in exercising their discretion, they must do so reasonably and lawfully.

67           Again, where exercising their discretion, an education authority must do so reasonably and lawfully.

69 – It is not helpful, in this document to highlight coercive measures – which are only mentioned in the Code in relation to home educating families.  In chapter 5, para 24 for example, mention is made of parents who will not co-operate with a CSP process.  No mention of coercive measures is made here.

70 – Where the education authority refuse to make provision for a child in these circumstances, the exercise of their discretion may be subject to mediation or dispute resolution.

75 – Again, where exercising their discretion, an education authority must do so reasonably and lawfully.  The exercise of their discretion may be subject to mediation or dispute resolution.

91 – The Code thus far gives the impression that personal support (under CfE) includes additional support, whereas here, there is an attempt to distinguish the two.  Universal support may be a better term here, rather than personal support.

94 – If the answer to that question is “No” then the authority requires to notify the parent/young person/child that their decision is that they do not have additional support needs, and should inform them of their rights to request mediation and/or dispute resolution.

Chapter 4

5 – Children over the age of 12 do not have the right to request mediation, either.

6 – Again, in exercising their discretion, the authority must do so reasonably and lawfully.

9 – It is incorrect to say that mediation cannot be used because the authority have no duty to carry out an assessment. Section 15 of the 2004 Act allows for mediation concerning the exercise by the authority of any of its functions under the Act.

10 – The reason that the parents of a child in an independent school cannot access the dispute resolution process in your example is not because the authority has not duty, but because the matter is not a specified matter under the Regs.

11 – Eligible children cannot make a placing request under the revisions to the Act.  Nor can they make a placing request appeal under the Act.

33 – Where the pre-school provider is an independent special school, or nursery classes within an independent special school, then a reference to the Tribunals could indeed be made to the Tribunal, partnership agreement or no.

37 – Here, the reference to para 33, should include a reference to para 34 as well.

41 – Here, the reference to para 33, should include a reference to para 34 as well.  The “education authority appeal committee” should read “ education appeal committee”.

48 – Where the pre-school provider is an independent special school, or nursery classes within an independent special school, then a reference to the Tribunals could indeed be made to the Tribunal, partnership agreement or no.

The content of this chapter is at great length and becomes confusing.  Could some of this information be presented in tabular form?

Chapter 5

13 – Under learning environment, the phrase “because the appropriate measures have not been put in place” is used.  Care is needed not to feed the fallacy that where a child’s needs are being met they do not have additional support needs, or that they would not require a CSP.  This is not the case.

25 – Where the eligible child is to be informed of a proposal to establish whether they require a CSP, it would be in addition to their parent(s), not instead of.  Strictly speaking, before an eligible child would have the right to be notified of the authority’s proposal, they would be expected to notify the authority of their intention to exercise this right.  How they do this, without knowing that the authority are planning to notify them of their proposal is not clear.  Perhaps the authority should notify the child of their intention to notify him or her that they propose to establish whether or not they require a CSP.  Then the child could notify the authority in return that they intend to exercise their right to receive notification of that proposal.  Then the authority would require to assess the child’s capacity to exercise that right, and whether it would adversely affect their wellbeing to do so, before finally agreeing that they should be notified.  This all seems unnecessarily complex, but appears to be required by the amended Act.

30 – There may be a requirement to notify the eligible child of a decision regarding a CSP as well.

78 – Reference to “paragraph 78 above” appears instead to be a reference to para 77?

80 – Reference to paras 75 and 78, appear to be a reference to para 74 and 77 instead?

100 – The involvement of two or more agencies is not the criteria for a child’s plan in terms of Section 33(1) of the Children and Young People (Scotland) Act 2014 and it is misleading to include that here.

Chapter 6

7 – Section 13(6) of the 2004 Act makes the regulation applicable to “children and young persons having additional support needs” and the Regulations do not seek to restrict this category.  There is no lawful basis for denying some children access to these transition procedures – the authority do not have a discretion on this.  This is incorrect and needs to be altered.

20 – This para make reference exclusively to young people.  For a school leaver planning to leave school at 16, the transition provisions would also include children.

23 – Footnote 70 makes reference to the old definition of “young person”, rather than the revised definition which will be in force at the same time as the Code is published, as I understand matters.

32 – The Scottish Transitions Forum is mentioned here – further detail from the Principles of Good Transitions 3 should be made: including setting out the seven principles in full in the body of the Code.  At the very least they should be included in an Appendix.

37 – The duty in Section 12(6) applies to “any child or young person having additional support needs”. There is no lawful basis for denying some children access to these transition procedures – the authority do not have a discretion on this.  This is incorrect and needs to be altered.

38 – The phrase “best interests of the child” is used here.  In keeping with terminology used elsewhere, a reference to “wellbeing” may be more appropriate.

45 – The refusal to give permission to share personal data with other agencies can presumably only act as a bar to bringing a reference in relation to transition duties to share information.  The other transition duties (to gather information about likely provision etc.) still apply and could be the subject of a reference to the Tribunal.

Chapter 7

7 – The views of the parents are sought even where the child also has capacity to express a view.

14 – How well the person taking the child’s view know him/her should not be regarded as a matter which gives the child’s views extra weight.  The familiarity may bring with it a knowledge on the part of the child of the answer the adult regards as the right one and an unconscious pressure to give that answer.  The best way for a child’s views to be taken is by an independent children’s advocacy worker who has had the opportunity to build trust with the child.

19 – The terminology used by the Act is “adversely affect the wellbeing of the child” – this is not the same as avoiding any adverse impact on wellbeing.  The wording used in the Code here overstates matters.  Particular consideration in the assessment of wellbeing in these matters should be given to the wellbeing indicator of Respected – the child’s right to respect for their decision to exercise their rights must be of paramount importance.

23 – Parents are also empowered to speak and act for their child, even where the child does have capacity – the child may prefer that their parents do the talking in a review meeting for example.

31 – This has been the subject of a Section 70 complaint, in which Scottish Ministers indicated that to exclude a supporter or advocate, the authority would require to show evidence of their unsuitability – it is not enough to have a subject view to that effect.  The parent’s choice of supporter or advocate should be respected in all but the most extreme cases.

37 – Is it intended that details of the Children’s Service be given here?  Also at 39?

Chapter 8

2 – I disagree.  Authorities should not give precedence to their own internal complaints processes over the specialist dispute resolution mechanisms provided for in the Act.  In two separate decisions in 2015, against Highland Council and Fife Council, the SPSO upheld complaints by parents who had been through the Council’s own complaints process. The Ombudsman found that they “had a right to be made aware of the alternative dispute resolution provision” (https://www.spso.org.uk/sites/spso/files/decision_summaries/201302996.pdf) and recommended that the Council ensure parents were appropriately advised of their rights to independent adjudication.  The same issue arises in relation to the flowchart on p135, which also manages to imply that mediation must be attempted before accessing the Tribunal (which is specifically ruled out by s15 of the Act).

 

Picture Credit: By Tss.pk (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

The right help at the right time in the right place – consultation response

“Scotland’s Strategy for the Learning Provision for Children and Young People with Complex Additional Support Needs 2017-20206 aims to support improved outcomes for children and young people with complex additional support needs through strategic commissioning of national services; with particular focus on the provision of education. This strategy is based on recommendations made in the Doran Review published in November 2012. While this strategy also recognises the critical role played by social services and health in supporting educational outcomes, the strategy is set within the context of The Additional Support for Learning Act 2004.”

The consultation document sought responses to the proposed strategy for children and young people with complex additional support needs.  Below is my response to the consultation.

Responses are sought to this consultation document. I have prepared some comments based on my knowledge and experience of providing legal representation for the families of children and young people with complex additional support needs.

On page 4, I would suggest using the full title of the Act, i.e. “the Education (Additional Support for Learning) (Scotland) Act 2004”.

On page 6, the relevant Act for the criteria for a CSP is the Education (Additional Support for Learning) (Scotland) Act 2004, not the 2009 Act.

On p7, the Doran Review specifies an aspiration that services are delivered, where possible, “within the home community” (this is mirrored on p10 – “locally provided”).

The benefits to the child of having services delivered within their community will be many. However, care must be taken that this terminology is not seen as a reason to avoid choosing an out of authority placement for a child who would benefit from that service. It would be useful to set out what is meant by “locally” and “home community” and to stress that it is not shorthand for the specified area of the education authority in question. I have witnessed the argument being made that a child would benefit from being educated in their local community, when the local authority provision in question is many miles from their home. For a child living in Spean Bridge, Inverness is no more their “home community” than Glasgow is.

The Doran Review also specifies an aspiration that services are inclusive (and again on p10). No-one would argue that inclusion is not of benefit to the child. However, care must be taken that the term inclusion or inclusive does not become shorthand for mainstream school. While the presumption of mainstreaming is legally defined in very mechanical terms, of much more importance is the quality of the experience for the child at the provision in question and how that is perceived. How included does the child feel? How inclusive is the school experience for the child and their family?

A child attending a residential special school away from home may experience that as a wholly inclusive setting, whereas a disabled child attending a mainstream school where she is not permitted to attend school trips and is not selected for the sports teams may find that placement to be the opposite of inclusive. The child’s views should be central to this question.

On page 8, the document states “The decision as to the most appropriate interventions and placement lies with the home education authority ..” But should it rest there? There are problems with the current set-up in which the authority determines the child’s placement, unless overruled by a placing request on appeal.

In my opinion, the ideal would be for a system which successfully places at the nationally funded special schools only those children who need it most / would derive most benefit from that placement.

There is a danger with the current arrangements that children are instead placed at such schools for other reasons, for example:
• because their parents are more persuasive, articulate or knowledgeable than those of other children;
• because their parents’ representatives are skilled in making appeals to the education appeal committee or Additional Support Needs Tribunals as the case may be;
• because with the central funding available, the school is cheaper than more appropriate placements in other authority areas / independent sector;
• because the child or family is at crisis point and suitable social work support is not available, the child being placed for respite reasons, rather than educational ones.

A better system, in my view, would be to nationally fund the GASS schools (not necessarily the same ones as at present) in full to provide specialist places for a defined number of children with particular types of complex / severe additional support needs (as determined by the National Strategic Commissioning Group).

The schools themselves, as centres of excellence in their respective fields, would then be able to select the pupils who would most benefit from the places. Without a shortage of places, there would be no disincentive to transition back to the authority’s own schools. With no financial penalty for doing so, authorities would be free to recommend places for children suited for placement based solely on the child’s additional support needs and wellbeing.

Such a system also removes the need for an expensive, time consuming and stressful dispute resolution process which can damage working relationships and take up valuable resources (time, money, energy) which could otherwise be directed by authorities and parents alike to supporting positive outcomes for the child in question.
The Scottish Government already provides 100% capital and revenue funding for one mainstream grant-aided school (Jordanhill School) and there is no reason why it could not do so with (selected) grant-aided special schools. It would be simple to achieve, would not require any legislative changes, and provides savings elsewhere in the system.

In the first instance this could be piloted in relation to a small number of schools or even a single school.

Also of interest in this context are the proposed changes to the structure of Scottish education under the Scottish Government’s governance review. If the education authority are to remain responsible for additional support needs (cf. http://www.gov.scot/Publications/2017/06/6880/11) while schools acquire new autonomy for the delivery of education and responsibility for closing the attainment gap – then the current system where the authority is basically tied to offering places in its own schools in all but the most extreme cases could be modified.

Does an education authority, responsible for meeting a child’s additional support needs need to be tied to schools in a given area, if all such schools are acting autonomously?

Perhaps an education authority should be given the broader choice of “purchasing” a suitable placement for a child with complex additional support needs, whether that happens to be at a public school, an independent school or a grant-aided school.

On page 10, the Legislative and Policy Context, bullet point 1 should read “Education (Additional Support for Learning) (Scotland) Act 2004”, and bullet point 5 should read “Children and Young People (Scotland) Act 2014”.

Page 11 mentions a “3 year cyclical commissioning plan” which would allow alignment with education authorities’ accessibility strategies and other planning duties.

Page 12 notes the need for “proactive collaborative working” – but the current system does lead to disputes – better collaboration between grant-aided schools and authorities would be of benefit to pupils, but can be difficult to achieve on the back of a process in which parties are led to criticise the other’s provision.

Page 13 talks about the development of relevant professional learning opportunities, but there is a strong case for professional learning requirements. The Requirements for Teachers (Scotland) Regulations 2005 currently require suitable qualifications for those working wholly or mainly with pupils with a visual impairment, a hearing impairment, or a dual sensory impairment. Why is there no equivalent requirement for, say, those working with pupils who have an autistic spectrum disorder?

On page 14, the need for a strong partnership between parents and providers is noted. It can be difficult to engage with parents for special schools as there are often much larger catchment area, parents with additional caring responsibilities etc. Could the Scottish Schools (Parental Involvement) Act 2006 be extended to include grant-aided special schools, or guidance issued on adopting the same system on a non-statutory basis (which could be made a condition of funding)?

I would also observe that there is a need to maintain strong and ongoing local authority engagement where placements are made at grant-aided special schools, particularly in relation to educational psychology services and at the post-school transition stages.

Iain Nisbet
Education Law Consultant

 

Photo credit: (U.S. Air Force photo by Airman 1st Class Jeremy L. Mosier/Released)

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