Centre Stage

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

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

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

CSP Report

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

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

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

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

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

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

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

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

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

Further recommendations include:

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

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

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

Welsh lessons

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

Welsh Government Factsheet

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

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

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

Image by Pete Linforth from Pixabay

Reasonable adjustments for schools in a time of pandemic

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

Overview of the legal framework

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

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

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

Reasonable adjustments

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

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

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

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

Discrimination arising from disability

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

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

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

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

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

Overlap with additional support needs framework

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

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

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

Issues arising during the Covid-19 pandemic

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

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

Recent Tribunal cases

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

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

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

Image by Hatice EROL from Pixabay

Programme for Government 2021-22

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

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

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

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

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

More on that as it becomes available.

Potential Energy (Conclusion)

So, to recap…

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

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

What did Children and Young people tell the Review?

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

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

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

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

Other points noted by the younger contributors included:

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

Participation

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

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

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

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

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

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

Resources – and relationships

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

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

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

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

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

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

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

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

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

Image by LeoNeoBoy from Pixabay

Potential Energy (Part 10)

The ninth, and final, theme within the ASL Review is “Assurance mechanism and inspection” – which sounds dull, but it extremely important. After all, there is little point in having a review and publishing a report filled with recommendations if no-one is making sure that those recommendations are actually being put into practice and making a difference for children with additional support needs.

Continue reading “Potential Energy (Part 10)”

Potential Energy (Part 9)

Theme 8 in the ASL Review is “Understanding Rights”. As a lawyer, and a former law centre lawyer at that, you would expect me to be in favour of a rights-based approach – as indeed I am.

Things have moved on since the Review was published. It notes the Scottish Government’s commitment to incorporation of the UN Convention on the Rights of the Child into Scots law. Now, the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill has been passed by the Scottish Parliament. The Bill has been referred to the Supreme Court under section 33 of the Scotland Act 1998 by the Attorney General and the Advocate General for Scotland, which may delay implementation a little, but is unlikely (as I understand it) to have any significant impact on the main operation of the law.

Continue reading “Potential Energy (Part 9)”

Manifesto Review – Scottish Parliamentary Elections 2021

I expect it hasn’t escaped your notice that there is an election happening soon. As such, and with an optimistic aspiration that it might encourage people consider more than just that issue when considering how to vote, I will review the main political parties’ manifestos.

This is not a review of the whole of the manifesto of each party, but only those parts which relate to additional support for learning. I am aiming to let you know what each party says and to provide some commentary where appropriate. I am certainly not going to tell you how to vote! Comments on the policies themselves and other ideas you wish were included are very welcome – political points scoring and arguments are not! I am presenting the manifestos in the order in which they were released.

Continue reading “Manifesto Review – Scottish Parliamentary Elections 2021”

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

Back in October 2019, I blogged on a decision on permission to appeal in this case (cf. Case summary – Midlothian Council v. PD). As you’ll remember, permission to appeal was granted and the decision on the appeal has now been published on the Scottish Courts and Tribunals Service website.

The appeal was granted, and the case has been sent back to a new First-tier Tribunal (Health and Education Chamber) to hear the case afresh.

Many of the same issues canvassed at the permission to appeal hearing are covered again in this decision (unsurprisingly). As before, I’ll attempt to cover the main points which might be of more general application.

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