Educational Continuity (No. 9) Direction

At one minute past midnight this morning, the latest educational continuity direction came into force. It will remain in force (unless revoked) until one minute to midnight on 12 March 2021. It may well be formally reviewed at some point prior to that.

As before, the main substance of the direction remains the same (most schools are mostly closed for most pupils), so I will just concentrate on the differences. This time round, the big difference is the provision of in school education for P1-P3 and (on a more restricted basis) S4-S6.

  • having made it clear in the previous direction that education authorities are not required to make provision of remote learning or of education and childcare to those who qualify, outwith normal term time, a further clarification is made here that this is not required on in-service days either;
  • the direction introduces a further exception allowing schools to be used for the facilitation of a Covid-19 testing programme;
  • the direction requires education authority nursery schools and nursery classes to reopen as of 22 February, and for P1 to P3 pupils to return to education authority schools on that same date;
  • in exceptional circumstances, older primary pupils will be permitted to return, where they are in a composite with children in the P1-P3 age range, and there is no reasonable alternative (this might occur with very small schools, I think);
  • for pupils who are in S4-S6, attendance at school is permitted, where necessary for the completion of practical work required for national qualifications;
  • in the meantime, staff are allowed to access schools in order to plan and prepare for the above partial re-opening of schools;

As before, the legal disregards apply (including additional support needs duties and deadlines), but the guidance remains strong on the limited circumstances in which they apply. “It is therefore the continued expectation that authorities deliver against these duties, to the extent that they are not prevented from doing this because of the Direction.” It even goes so far as to suggest that education authorities “will also wish to take their own legal advice in relation to their duties in light of the Direction.”

Case summary – Aberdeen City Council v. LS (Upper Tribunal for Scotland)

There are a number of differences between the systems of education in Scotland and England. One of those is the existence of specialist colleges for young people with learning difficulties and/or disabilities. Another is the tradition of Sixth Form Colleges. The question which arose in this case was whether pupils with additional support needs in Scotland could access this kind of provision elsewhere in the UK.

As you may know, the system of making placing requests includes, for pupils with additional support needs, the ability to make a request for “a school in England, Wales or Northern Ireland the managers of which are willing to admit the child and which is a school making provision wholly or mainly for children (or as the case may be young persons) having additional support needs”.

In this case, the First-tier Tribunal for Scotland (Health and Education Chamber), had determined – as a preliminary issue – that the specialist college in question did count as a “school” under the above definition. This meant that LS, the young person, could make a placing request to the specialist college in question. It also means that a refusal (or deemed refusal) of that placing request could be appealed to the Tribunal.

The Council appealed against this decision. There is quite a lot in the detail of the Upper Tribunal decision (Aberdeen City Council v. LS [2021] UT 1) here, but to provide the broad sweep, I will try to simplify.

  • The Upper Tribunal rejected the appeal points raised by the Council and upheld the original Tribunal’s decision. That is, the UT confirmed that the specialist college in this case could be counted as a school for the purposes of a placing request. The Council argued that it should not be because of the age of the students (16+) and the nature of the institution. That argument was rejected.
  • Lady Poole went on to make a number of observations, aimed at ensuring that Tribunal cases were not subject to unnecessary delays. These observations are just that, but they are likely to be taken seriously by the Health and Education Chamber.

So, what does this mean?

First, senior pupils in Scotland with additional support needs will be able to access a wider range of schools than was previously thought to be the case – including specialist colleges. Whether a particular institution and course do qualify will depend on the facts of the individual case, with the focus being on the nature of the provision being offered (can it be regarded as secondary education?) rather than on the age of their students or how they are regarded within the English system.

It follows that I refuse the appeal on grounds 1 and 2 advanced by ACC. Both are predicated on the argument that placing requests can only be to schools which provide education for pupils of school age (essentially 5-15 year olds). I do not consider this is a requirement of para 2(2)(b) of Schedule 2 when properly interpreted, for reasons set out above. I consider the approach of the FtT, in reading para 2(2)(b) in the way it did and determining whether that test was met on the evidence, was correct.

Lady Poole, Aberdeen City Council v. ACC [2021] UT 1

Second, we can look forward to potential changes in some Tribunal procedures. For example, it may well be that treating matters as a separate preliminary matter becomes less common. It is also likely that where a review and a request for permission to appeal are lodged at the same time (which is quite common) they should be considered at the same time, rather than one after the other. This should be quite helpful in reducing delays within the Tribunal process.

Image by StockSnap from Pixabay

Educational Continuity (Nos. 6 & 7) Directions

First of all, apologies for the lack of blogging over the last month or so. A much needed Christmas break has been followed by a hectic start to the year. Thanks for your patience.

So, we are back into a period of educational continuity directions to consider. Educational Continuity (No.6) Direction was issued on 22 December 2020, and took effect as of 28 December 2020. At that point, the plan was for a brief extension to the Christmas holidays followed by a week of remote learning, and the direction would run until 19 January 2021.

Specifically, the direction required education authorities to restrict access to their schools until 18 January 2021. Significant exemptions to this rule were:

  • early learning and childcare, which would run from 28 December 2020;
  • school age education and childcare for the children of key workers and vulnerable children and young people, which would run from 5 January 2021; and
  • remote learning for “pupils who normally attend schools” from 11 to 15 January 2021.

The “in-person provision of education” in schools was to resume from 18 January 2021.

However, the No.6 continuity direction was then revoked and replaced by the No.7 continuity direction as of 9 January 2021. This provided for education authority schools to remain closed, with the following exceptions:

  • early learning and childcare;
  • school age education and childcare for the children of key workers and vulnerable children and young people; and
  • remote learning for pupils from 11 to 29 January 2021 (but see below).

The No.7 direction expires on 1 February 2021, but is likely to be replaced by a very similar (No.8) direction before then. Education authorities are required to plan and prepare for children to resume attendance at schools “at the earliest time it is safe to do so, having regard to any guidance issued by the Scottish Ministers”.

Education authorities are also required to secure the provision of free school meals or “reasonable alternatives” e.g. food / vouchers or cash, for those eligible.

From a legal point of view there is a similar impact on legal duties as in previous directions. Specifically, any failure to comply with a duty or time limit under the following provisions is to be disregarded “to the extent that the failure would be attributable to this Direction”:

  • Section 53(2) of the Education (Scotland) Act 1980 (free school lunches) – but see the alternative measures above;
  • Section 30(1) of the Education (Scotland) Act 1980 (duty for parents to provide education for their children) insofar as the duty is discharged by sending the child to a public (i.e. local authority) school;
  • Section 4(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (duty to make provision for additional support needs);
  • any time limits imposed by the 2004 Act or its regulations (except for the placing request deadlines – which have been extended in specific regulations); and
  • Section 47(1) of the Children and Young People (Scotland) Act 2014 (duty to provide early learning and childcare) – but see the alternative requirements set out above.

As before, the disregard is limited to failures caused by the direction being in place. As the guidance states:

any failures which cannot be attributed to a Direction would continue to be treated as a failure to comply with that duty.

Educational Continuity (No.7) Direction, 8 January 2021: Guidance note

A further educational continuity direction, coming into force on or before 1 February 2021 is expected soon, and I will update once it has been published.

Additional Support Needs Update (Issue 8)

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 Angela Morgan’s ASL review, and the Scottish Government / CoSLA response to its recommendations. There’s also an updated guide to the changes to the law brought about as part of the Scottish Government’s response to the Covid-19 pandemic. 

The support spotlight this edition looks at an excellent new blog from a young man with dyspraxia. You should go and take a look at the Dyspraxic Den.

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

Additional Support Needs Update (Issue 8) – PDF

Image by Tumisu from Pixabay

Potential Energy (Part 5)

Theme 4 of the ASL Review is on resources. The remit of the review specifically stated that it was to consider implementation “within existing resources”. The review report, therefore, “includes limited comment on resources”, deferring more detailed consideration of this key issue to the forthcoming Audit Scotland thematic review of Additional Support for Learning.

Having said all of that, the review report still has much to say on the subject which is both perceptive and helpful.

Continue reading “Potential Energy (Part 5)”

ASL Review Action Plan published

The Scottish Government and COSLA have issued their action plan in response to the ASL Review today. You can read the action plan here: https://www.gov.scot/publications/additional-support-learning-action-plan/.

As you know, I am in the process of working my way through the review itself in detail, and will return to a detailed coverage of the action plan once that is complete.

However, in the meantime, a quick summary.

Almost all of the recommendations in the review are accepted, with one set of recommendations being partially accepted. True to form, there is much set out here which is already in place or underway. The first review of progress against the recommendations is due by October 2021.

Continue reading “ASL Review Action Plan published”

Potential Energy (Part 4)

Theme 3 of the Support for Learning review is “Maintaining focus, but overcoming fragmentation”.  It is a shorter section, covering only two A4 sheets, but addresses an important issue.  How do we ensure specialist knowledge and experience is available in the system for those who need it, without creating “silos” and giving the impression that additional support for learning is only for specialists?

Continue reading “Potential Energy (Part 4)”

Dyspraxia Awareness Week 2020

This week (4-10 October 2020) is Dyspraxia Awareness Week. According to the NHS, “Developmental co-ordination disorder (DCD), also known as dyspraxia, is a condition affecting physical co-ordination. It causes a child to perform less well than expected in daily activities for their age, and appear to move clumsily.”

It can also have a wider impact, affecting things like processing, short-term memory and spacial awareness.

Continue reading “Dyspraxia Awareness Week 2020”

Potential Energy (Part 3)

Following consideration of Theme 1: Vision and visibility, we turn our attention to Theme 2: Mainstreaming and inclusion. This obviously covers a lot of the same ground as the revised “Guidance on the presumption to provide education in a mainstreaming setting” on which I recently completed a ten-part series of blogs. You can read my conclusions on that guidance in Mainstreaming, I presume? (Part 10).

Thankfully, this review reaches many of the same conclusions about mainstreaming, and explicitly adopts many of the key concepts and principles from the guidance:

  • the review confirms that the “physical presence of a child” in a mainstream school alone does not constitute inclusion;
  • it adopts the four principles of inclusion from the guidance – present, participating, supported and achieving; and
  • it underlines the importance of inclusion “in the life of the school” which includes the playground, school trips, sporting events, social events and being “visible as part of the community”.

Continue reading “Potential Energy (Part 3)”

Potential Energy (Part 2)

Continuing our consideration of the ASL Review Report, the main section of the report begins with “Theme 1: Vision and visibility”.  This covers two big issues.  One is that there is no defining national agenda or narrative in relation to additional support needs, demonstrated perhaps by their absence from the National Improvement Framework.  The second is that the term “additional support needs” continues to be misunderstood and misinterpreted, with the result that particular groups of children and young people who are covered by the law missing out on their rights in practice.

Continue reading “Potential Energy (Part 2)”