Educational Continuity (Nos. 4 & 5) Directions

Due to being away on annual leave last week, I didn’t get a chance to blog on the last Educational Continuity Direction, which was the fourth issued by the Scottish Government.  It was not hugely exciting in that it mainly continued the previous directions, with some additional bits and bobs about preparing for schools re-opening on 11 August.  It also effectively brought to an end the provision of childcare for keyworker and vulnerable children, as of 31 July 2020.

But 5? Five! Well, this is the one we have been waiting for.  Issued on Thursday 6th August, but not coming into force until Monday 10th?  You know we’ve got something special on our hands.

For one thing, this direction is due to remain in place until 30th August 2020, and – as things stand – “it is not anticipated that a further direction will be required.”

As before, the direction applies only to education authority schools.  The main focus is now on the re-opening of schools, and the requirements are set out plainly:

  • schools may reopen to pupils from 11th August 2020;
  • schools must reopen to pupils by 18th August 2020;
  • authorities must prepare contingency plans to be used “immediately in the event of a local coronavirus outbreak”.

There are no specific requirements about steps to be taken for safety, but there is a general objective:

preventing the transmission of coronavirus, the welfare of children and young people and staff, and the importance of continuity of education.

And, as always, education authorities have to have regard to “relevant guidance issued by the Scottish Ministers” (of which there is no shortage).

And, contrary to expectations, there is no continuation of the disregard of failures in certain statutory duties – including key deadlines and duties within the additional support needs legislation.  Therefore, the period during which education authorities (and parents) may be able to rely on failures to comply with certain duties being disregarded is limited to the period from 2pm on 21 May 2020 until 1 minute past midnight on 10 August 2020 – and only insofar as it is the restrictions within the direction(s) which have led to the failure.

This means, of course, that in returning schools have all the same duties in place to make adequate and efficient provision for pupils’ additional support needs, and to make reasonable adjustments (including the provision of auxiliary aids and services) to avoid substantial disadvantage to disabled pupils.  Under the circumstances, there may well be significant needs to be met, and adjustments to be made.  The latest direction has effectively removed any “but the pandemic” excuse for disregarding those duties.

You can access all of the Educational Continuity Directions (and the accompanying guidance documents) on the Scottish Government educational continuity direction page.

 

 

Mainstreaming, I presume? (Part 10 – Conclusions)

So, we have finally reached the end of the Scottish Government’s guidance on the presumption of mainstreaming.  Having gone through it in that level of detail, I have obviously had the opportunity to form a view on it.

Reading through the previous nine articles, you will see that I have some criticisms and some concerns in relation to individual sections.  However, overall, I would say that this guidance is pretty good.

It is well written and well structured.  It provides a useful working definition of inclusive education, through its use of the “four key features of inclusion”.  It is a practical document, which you can actually see education staff, parents and young people making use of in tackling the issues which arise.  The practitioner questions, in particular, are a really useful approach and identify the right questions without dictating an answer in any individual case.  It also valiantly attempts to move the terminology on from “mainstreaming” to “inclusive education / inclusion” while hampered with legislation which bears the crossheading “Requirement for mainstream education”.

So, as I was asked on the facebook page recently …

What’s your stance on presumption of mainstreaming?

A good question.

One of the points to consider here is how well the Scottish legislation (Section 15 of the Standards in Scotland’s Schools etc. Act 2000) implements Scotland’s international obligations (Article 24 of the UN Convention on the Rights of Persons with Disabilities).

But Section 15 was never an attempt to implement the UNCRPD.  Scotland’s presumption of mainstreaming law (passed by the Scottish Parliament in 2000) predates the UN Convention (came into force on 3 May 2008) by several years.

At that time, as far as I know, the leading international source for inclusive education was the UNESCO Salamanca Statement (from June 1994), with its call for children with special educational needs to have access to “regular schools” with an inclusive orientation”.

It is a measure of the speed at which progress was made that less than 15 years later, there was a UN Convention requiring all States Parties (including the UK) to ensure that “[p]ersons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;”  And it is therefore perhaps not surprising that legislation which predates that Convention does not fully reflect its requirements.  Time for a legislative review?

One of the big problems which exists here is with the terminology.  A “presumption of mainstreaming” – is almost tailor made to get parents’ backs up.  Why are you taking important decisions about my child on the basis of a presumption?  Look at them as an individual and make a decision that is best for them!

And look at how it is structured.  A duty on the education authority to ensure that children (subject to the three exceptional exceptions) are provided with school education in schools which are not special schools.  The assumption was that the presumption of mainstreaming was something which parents could use to ensure access to “regular schools”.  Too often, it is something which is imposed on parents against their better wishes.  This is compounded where the provision then does not deliver on reassurances made by education personnel (who may not work within the school in question).

What if the legislative language was not about taking children and deciding where to put them – like some kind of low-grade Sorting Hat?  What if, instead of a duty to place children in mainstream schools, the education authority had a duty to make its mainstream schools inclusive for all pupils?  What if, instead of a duty to put children in local schools, there was a duty to make local schools accessible, inclusive and welcoming for children with disabilities or additional support needs?

The Equality Act 2010 and the (oft-forgotten) accessibility strategies go some way to achieving this – but not far enough.  Just this year, I represented a family who could not send their child to the local school for want of an accessible toilet, which the authority refused to install for cost reasons.  Besides, there was an accessible school not too far away and we will pay for a taxi for you.  This is – as the law stands – perfectly legal.

It is not my role to make suggestions about how we could improve things, but if it were, I might suggest the following:

  1. Review and revise the legislation so that it better reflects Scotland’s obligations under the UN Convention on the Rights of Persons with Disabilities.
  2. Strengthen the Accessibility Strategies process so that schools and authorities take it seriously, and they are externally audited (as they used to be).
  3. Schools should give parents at least an indication of the supports available for their child in advance of attendance.  Being told that the child will attend, and then the school will determine the level of support required is not at all reassuring.
  4. If a child is to attend a mainstream school, the right support and financial backing must be given to allow their full participation in all aspects of the school – after school clubs, school trips etc.
  5. Children and young people should be at the centre of and involved in decisions about their own education.
  6. A diversity of provision – including smaller, quieter schools – would be of benefit to a diverse range of learners.  Those with additional support needs and those without.

Thanks for sticking with me over the course of this ten part series, and for those who have provided useful comments and feedback.

Mainstreaming, I presume? (Part 9)

And so, we finally get to the core of the guidance, which is the duty itself and – almost as importantly – the three exceptions to that duty.  As the guidance notes: “If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person’s wellbeing, in order to reach a conclusion on the application of the three exceptions..”

Continue reading “Mainstreaming, I presume? (Part 9)”

Educational Continuity Direction (21 May 2020)

After nearly two months of schools in Scotland being closed, the Scottish Government have issued a formal direction, providing a legal basis for this state of affairs.

In terms of their powers to do so under Schedule 17 of the Coronavirus Act 2020,  Scottish Ministers have issued an Educational Continuity Direction, which came into force at 2pm on Thursday 21 May 2020.

As required by law, in making the direction Scottish Ministers a) had regard to advice regarding the coronavirus from Scotland’s Chief Medical Officer; and b) were satisfied that the direction was a “necessary and proportionate action” in relation to the continued provision of education.

Educational Continuity Direction

So, what does it do?

Geographical Coverage

The Direction applies across Scotland, and to all thirty-two education authorities.  There is no mention of independent or grant-aided schools, although the Act certainly allows for a direction to be issued which covers those schools (as well as further and higher education institutions).

Preparing to Re-open Schools

The direction requires education authorities to plan and prepare “for children to resume attendance at schools” – including nursery classes “at the earliest time it is safe to do so”, having regard to Scottish Government guidance.  In doing so, support for children at key transition points should be prioritised.

Staff may access schools from June 2020 for the purposes of planning and preparing (including any necessary alterations to premises) for the provision of:

  • learning and teaching on school premises and remotely “from August 2020”; and
  • early learning and childcare (i.e. nursery provision).

Continuing Provision

The direction also requires education authorities to support in-home learning “in accordance with appropriate local arrangements”.  This also applies (though perhaps to a lesser extent) to children receiving education at schools under the arrangements for vulnerable pupils and children of key workers.

Education authorities must provide education and childcare “pursuant to appropriate local arrangements” for:

  • the children of key workers (including NHS and social care staff); and
  • vulnerable children (including those eligible for free school meals, with complex additional support needs and at-risk children).

In doing so, the authority must have regard to relevant Scottish Government guidance.

Where the authority is unable to provide free school meals for children eligible for them, they are required to provide reasonable alternatives (e.g. other food and drink, vouchers, or cash).

In making provision or otherwise acting under this Direction, the authority must have regard to “the objective of preventing the transmission of coronavirus, to the welfare of children and young people and staff, and to the importance of continuity of education.”

Ancillary Provision

The direction requires education authorities to restrict access to their schools and nurseries, except as may be required for any of the above purposes, or for:

  • providing pupil estimates and grade rankings to the SQA;
  • maintaining the buildings and facilities;
  • using the buildings and facilities as part of the local authority’s pandemic response.

Legal Impact

One very significant effect of the direction is that it means that any failure to comply with a duty or time limit listed below is to be disregarded “to the extent the failure would be attributable to this Direction” –

A parental duty to comply with the duty to education your child (Section 30(1) of the 1980 Act) will be similarly disregarded.

Not that I am one for cross-border comparisons, but the position in England & Wales (as I understand it) is that the special educational needs (SEN) duties have largely been downgraded to a “reasonable endeavours” duty i.e. the LEA/school has a duty to make reasonable endeavours to make the required provision.

Here, the equivalent duty is to be disregarded entirely – although only to the extent that non-compliance was attributable to the direction itself. This is, in fact, stricter than it sounds.  As the guidance note points out “That means that any failures which cannot be attributed to a Direction would continue to be treated as a failure to comply with that duty or time limit.”

Duration and Review

The direction took effect at 2pm on Thursday, 21 May 2020 and remains in force for 21 days (or until revoked – if earlier). Effectively it will be reviewed and probably amended as we go on – every 21 days.  As the guidance note states: “It will be reviewed no later than 10 June, and it is expected that a further Direction will be made by 10 June to modify, replace or supplement it as appropriate.”

It does leave open the question – on what legal basis were the schools closed during the last two months, and what is the position re: the legal duties during that period?

Image by Gerd Altmann from Pixabay

Additional Support Needs Update (Issue 7)

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

This edition looks at changes to the law brought about as part of the Scottish Government’s response to the Covid-19 pandemic, explaining changes to legislation and the new guidance applying to education.  There is a separate “how to” section with some tips in relation to placing requests, given the revised timescales which now apply.
The support spotlight this edition looks at different organisations across the country providing innovative responses to assist families at this difficult time.

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

Additional Support Needs Update (Issue 7) – PDF

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Case summary – Aberdeenshire Council v. SS and DS (Upper Tribunal for Scotland)

As will be apparent from the decision notice itself, this was one of my cases, with the permission to appeal hearing taking place in the days before lockdown restrictions came into force in Scotland and the Upper Tribunal’s hearings were put on hold.

This is only the second reported decision from the Upper Tribunal for Scotland in an appeal from the Health and Education Chamber.  It is another decision on the specific question of whether permission to appeal should be granted (this arises as a matter for the Upper Tribunal to consider only where the First-tier Tribunal has refused permission).

The case is that of Aberdeenshire Council v. SS and DS [2020] UT 25, an appeal against a decision of the additional support needs Tribunal to require the authority to place the child in question at an independent special school (i.e. a placing request appeal).  The case has already been very well summarised and reported on by clan childlaw here: “Upper Tribunal refuses appeal by Aberdeenshire Council in case concerning placement request for child with additional support needs”.  However, I will make one or two observations in terms of the case’s broader significance, and the issues raised.

Continue reading “Case summary – Aberdeenshire Council v. SS and DS (Upper Tribunal for Scotland)”

Placing request timescales amended

The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 came into force on 23 April 2020, having been laid before the Scottish Parliament at 4.30pm the day before.

In short, they give the education authority more time in which to take a decision on placing requests, and education appeal committees more time in which to hear appeals.

Changes to the Education (Placing in Schools) (Scotland) Regulations 1982

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days

Changes to the Education (Appeal Committee Procedures) (Scotland) Regulations 1982

  • An appeal committee must now acknowledge receipt of an appeal reference within 28 days (an increase from 5 “working days”).
  • A hearing of the appeal must be held by the appeal committee as soon as reasonable practicable within the period of 3 months following receipt of the reference (an increase from within 28 days). If this is not possible “owing to circumstances beyond their control”, the hearing should be held “as soon as reasonably practicable” (changed from “as soon as possible”). The same applies to combined hearings.
  • The education appeal committee must now give notification of the date and other details of a hearing as soon as reasonably practicable (changed from 14 days after receipt of the reference in most cases).
  • The format of hearings may change, as the regulations allow for a hearing to be conducted in whole or in part by video link, telephone or “other means of instantaneous multi-party electronic communication”.
  • The appeal committee may also (if all parties agree) decide an appeal reference without a hearing, based on consideration of written submissions and evidence alone.
  • Education appeal committees have 28 days to notify parties of their decision, and the reasons for it (changed from 14 days).

Changes to the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005

These are the equivalent regulations to the Education (Placing in Schools) (Scotland) Regulations 1982, in relation to children and young people with additional support needs.

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days.
  • The deadline for the authority making known to the appellant and the committee all of the information relevant to their decision is now “as soon as reasonably practicable” (changed from “immediately”).

Observations

The changes to the education appeal committee regulations will impact on exclusion cases as well as placing request cases.

The deadline for a parental appeal to the education appeal committee remains the same at 28 days.

The deadlines applicable to appeals to the First-tier Tribunal for Scotland (Health and Education Chamber) remain the same. However, these were never as stringent in the first place, and are currently subject to the Guidance to Tribunal Members No 01/2020 “Hearings and the Covid-19 Outbreak” – which means that only time critical cases can currently proceed to a hearing (with a fairly strict definition of “time critical”).

As you know, most placing requests (including for children or young people with additional support needs) are heard by the education appeal committee. Appeals on placing requests for special schools (or special units), or for children and young people with a Co-ordinated Support Plan are heard by the Tribunal instead.

The implication of this is, of course, that if placing request decisions are not being taken until 31 May, and the appeal committee has up to four months to hear an appeal, in all likelihood that leads to significant numbers of appeals on placing requests not being heard until well into the next academic year. Apart from anything else, this makes transition planning for such cases challenging, to say the least.

The final point to make is that these regulations are not made under the new powers conferred by the Coronavirus Act 2020 or the Coronavirus (Scotland) Act 2020. They are made using existing regulation making powers. As such, there is no expiry date on these changes, and no scheduled review date. These changes will remain in force until further regulations are passed to amend them.

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Case summary – Drexler v. Leicestershire County Council (Court of Appeal)

This case was an appeal to the Court of Appeal against a decision of the High Court, rejecting a human rights challenge brought against a change in the SEN transport to school policy of the local authority.  The case was Drexler v. Leicestershire County Council [2020] EWCA Civ 502 and while the appeal was unsuccessful and concerning provisions in English law, it has some useful and interesting points for us to consider.

Continue reading “Case summary – Drexler v. Leicestershire County Council (Court of Appeal)”

Case summary – AD v. London Borough of Hackney (Court of Appeal)

The case of AD v. London Borough of Hackney [2020] EWCA Civ 518 was recently heard by the culinary trio of Lords Justice Bean and Baker, and Mr Justice Cobb at the Court of Appeal.  It is the latest in a series of unsuccessful legal challenges to local authority budget cuts affecting (or potentially affecting) special educational needs provision in England and Wales.

Continue reading “Case summary – AD v. London Borough of Hackney (Court of Appeal)”

Mainstreaming, I presume? (Part 8)

The Scottish Government guidance we have been looking at is called “Guidance on the presumption to provide education in a mainstream setting“, and yet it is only now – on page 13 of the document – that we reach consideration of the sometimes thorny issue of deciding on the right provision for a child or young person.

Continue reading “Mainstreaming, I presume? (Part 8)”