The Christmas holidays are now over, and it’s time I got back to the old blogging. In the third part of this series on the new (2019) Guidance on the presumption to provide education in a mainstream setting, I will be looking at the first of the “Key features of inclusion” : Present.
Last week the Scottish Government published revised guidance on school attendance.
The guidance is called Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools. As the name suggests, there is an immediate link being made here with school exclusion – Part 2 of the “Included, Engaged and Involved” is the exclusions guidance (which is, by and large, very good). Anyone who has read the Not Included, Not Engaged, Not Involved research will know the very real overlaps between non-attendance at school and informal exclusions from school for disabled pupils / pupils with additional support needs.
I come across issues of attendance and non-attendance in my capacity as a solicitor and also as a member of a local attendance council for a Scottish local authority. More often in the first capacity, the situation is that a child with additional support needs is “not coping” with school and this is manifesting itself in behaviour which makes it not safe for them to attend, or in a refusal to attend school – often expressed in very definite terms.
Note already the terminology used – it is the child who is not coping, rather than the school environment (say) or teacher practice (for example) which requires amendment.
Pupils with additional support needs have a lower rate of attendance than pupils with no additional support needs, with the difference being particularly stark in mainstream secondary schools (88.6% compared to 92.1%) 2017 stats. Given this known disparity, it is disappointing that the section on Additional Support for Learning occupies half of one page (in a fifty page document). There are four paragraphs, three of which explain what additional support needs means as a term and a little bit about Co-ordinated Support Plans.
The other paragraph, however, does sort of get to the heart of matters (in all fairness):
Providing additional support may help children and young people to engage more fully with school and promote good attendance. Schools should recognise that poor attendance can often be related to, or be an indication of, an additional support need and they should use their staged intervention processes to ensure that any barriers to learning are identified and appropriate support is provided.
My concern is that this gets lost in a document which has much more to say about the traditional means of responding to absence: work being sent home; attendance orders; references to the children’s panel; and prosecution of the parents of the absent child (five pages devoted to the “Measures for compulsory compliance” appendix!). None of which is helpful or effective in relation to a child whose autism means that they are unable to function effectively (let alone learn) in the busy environment of a large mainstream school. These systems were set up decades ago to deal with truancy and are ill-suited to other purposes. Further, once you are in the enforcement process, it is difficult to get out.
Fortunately, the Tribunals – and the Court of Session, in the 2018 Inner House case of City of Edinburgh Council v. R, may take a more considered view of this type of case. The case deals with some fairly technical matters under the Equality Act 2010, but ultimately has no difficulty with the Tribunal’s finding that a CSP for a disabled child refusing to attend school (for reasons arising from that disability) which basically says the school can do nothing until the child attends school – was inadequate, detrimental and discriminatory.
Big news in education law as Jon Platt, a father from the Isle of White, was cleared of a criminal offence in terms of Section 444(1) of the Education Act 1996. Having been acquitted by a Magistrate following a seven day absence for a family holiday to Florida, the High Court agreed that the court was entitled to look at the overall record of attendance in determining whether a child had failed to attend school regularly.
Is this decision of relevance to education authorities in Scotland? In a word, yes. The legislation is worded in similar terms. An offence arises in England or Wales where a pupil “fails to attend regularly at the school” – though a defence of “reasonable justification” may arise in some circumstances. In terms of Section 35(1) of the Education (Scotland) Act 1980, the offence occurs where a child of school age “fails without reasonable excuse to attend regularly at the said school”.
Scottish Office guidance on school attendance was formerly that up to two weeks of family holiday could be regarded as an authorised absence, where attendance was otherwise good. However, in 2007 the Scottish Government published Included, Engaged and Involved Part 1: Attendance in Scottish Schools, which took a distinctly harder line.
3.6 Family holidays during term time
Following consultation with headteachers, it has been clarified that family holidays should not be recorded as authorised absence, except in exceptional domestic circumstances, where a family needs time together to recover from distress, or where a parent’s employment is of a nature where school-holiday leave cannot be accommodated ( e.g. armed services or emergency services). It is for local authorities and schools to judge when these circumstances apply and authorise absence, accordingly.
The categorisation of most term-time holidays as unauthorised absence has been a contentious issue for some families, many of whom are concerned at the higher cost of holidays during school holiday periods. The Scottish Government has no control over the pricing decisions of holiday companies or flight operators. Our main focus is to encourage parents and pupils to recognise the value of learning and the pitfalls of disrupting learning for the pupil, the rest of the class and the teacher. It is for schools and education authorities to judge what sanctions, if any, they may wish to apply to unauthorised absence due to holidays.
Note that this change to the guidance, which effectively seeks to alter who can be prosecuted for a criminal offence was done without any alteration to the law. Similar changes were attempted in a similar way south of the border, and now it seems that these efforts have been undone by the courts in dramatic fashion.
Despite differences in the systems, in my view, it is very likely that courts in Scotland would adopt a similar approach to the interpretation of the phrase “attend regularly” – although it should be noted (anecdotally) that the Scottish Courts already take a more lenient approach to sentencing in such cases than the English Courts which have jailed at least one parent for her child’s non-attendance.
It is all but certain that solicitors representing parents being prosecuted in Scotland will be making this argument in appropriate cases from now on. At the time of writing, the Scottish Government have not responded formally to the judgement, but the Department of Education in Whitehall are already talking about changes to the law. At the very least, north of the border, education authorities may wish to consider carefully which cases are brought before the courts in future.
The author, Iain Nisbet, is a member of the Attendance Council for his local area.