Category: Consultation responses

Learning hours consultation – my concerns

On By Iain NisbetIn Additional Support Needs, Attendance and absence, Consultation responses, Exclusion, School EducationLeave a comment

Response to Consultation on Prescribing the minimum annual number of learning hours

The Scottish Government are seeking views on the prescribed minimum learning hours for primary and secondary pupils in local authority schools in Scotland.

Sadly, for many pupils the number of hours prescribed will be largely irrelevant as the statutory exemptions provided will allow education authorities to provide reduced learning hours based on broad criteria at their say-so alone.

The concerns outlined below were discussed with Scottish Government officials over a period from the passing of the Education (Scotland) Act 2016 to August 2018.

The Law

As the consultation points out, there is a long-established and near universal practice of schools providing 25 hours per week of school education and 27.5 hours per week in secondary schools.

As there is currently no legal requirement that this be the case, or legal entitlement to those specific number of hours, what is to stop individual pupils from missing out on their full entitlement to school education?

Perhaps surprisingly, it is the laws regulating the use of exclusion from school which provide those safeguards.

If a child or young person is a pupil at a school, they are entitled to attend that school during the school day. For a child or young person to be prevented from attending their school when school is on requires a formal exclusion – with all of the requirements that go with that (specified grounds for exclusion, a right of appeal, a duty to provide alternative means of education). Legally, it is also possible for the parents or young person to agree with the school that the pupil should not attend school (although this is not regarded as good practice).

Schools and education authorities have long used all kinds of linguistic gymnastics to get around the exclusion rules. Such attempts are almost always described as being in the best interests of the child or young person being excluded.

Fortunately, the courts[1], Tribunal[2] and official guidance[3] have been consistently clear that this is not an acceptable approach.

The exclusions guidance does recognise “flexible packages” may be a suitable approach for some pupils. However, this is qualified. It should be following “an appropriate assessment”. And it should “ensure that children and young people attend school or another learning environment for the recommended 25 hours in primary schools and 27.5 hours for secondary schools.”[4]

The exclusions guidance also does recognise a reduction in hours may be possible – although again in highly restricted circumstances. There should be an agreement that this best meets the needs of the child that should be “carefully negotiated” – i.e. agreed with parent and child. The arrangements should also be “for a limited period” and carefully “recorded and monitored”.[5]

The Tribunal takes a similar view: “All children in Scotland have a right to education and authorities have a duty to provide this. All children need to be included, engaged and involved in their education.”

 “The provision of a part time timetable would not be unfavourable if the claimant could not benefit from full time education but there was no evidence to suggest this.”[6]

One of the key expectations of inclusive education in Scotland is that “All children and young people should receive a full time education including flexible approaches to meet their needs.”[7]

National statistics demonstrate that disabled pupils and looked after pupils are disproportionately subject to exclusion: both formal and informal exclusions.[8]

As the 2018 report “Not included, not engaged, not involved: A report on the experiences of autistic children missing school.” notes, informal exclusions are a particular problem:

“As well as through formal exclusions from school, instances have been reported of autistic children being excluded from their education in other ways. This includes the use of part-time timetables, children missing school due to anxiety or other health needs, and a lack of suitable school placement or support meaning a child is unable to be in school. There are also concerns that many families are being asked to pick their child up from school early on a regular basis, without the child having been formally excluded – a practice which is unlawful.”[9]

The Promise commits Scotland to ending the exclusion of looked after children: “The formal and informal exclusion of care experienced children from education will end.” Plan 21-24 states that this will happen by 31 March 2024 – less than a year away.[10]

As The Promise Oversight Board’s Report ONE (May 2022) notes: “We do not know the extent of informal exclusion. [Formal exclusions] data does not tell us anything meaningful. There are differing reporting practices across local authorities, meaning this figure is only indicative.”[11]

The Proposal

Section 2ZA of the Education (Scotland) Act 1980 (as amended) requires education authorities to ensure that no fewer than the prescribed number of learning hours are made available during each school year to each pupil for whose school education they are responsible.

Subsection (3) provides that an education authority may provide fewer than the prescribed hours in certain specified circumstances.

Those relevant circumstances include:

(4)(b) that the authority is satisfied that the pupil’s wellbeing would be adversely affected if the prescribed hours were to be made available to the pupil..

The Problems

This innocuous sounding exemption raises several difficulties which will impact the most vulnerable children most severely:

The decision to provide a child with less than their full entitlement to education can be made by the education authority alone. There is no requirement (as there is elsewhere in education law) to seek the views of the child or their parents, still less to secure their consent. The consultation document says that the exception “would give the education authority flexibility to deliver an individualised number of learning hours to a pupil if it is agreed that this is appropriate to meet the needs of that pupil and respects their right to an education.” This is inaccurate and misleading as no agreement is legally required to implement the exception. This wording in the consultation document is likely to mean that this issue is not properly understood or addressed by consultees. It will provide Scottish Ministers with an inadequate basis on which to decide what action to take as a result.

That sentence would more accurately read “This would give the education authority legal authority to deliver a lower number of learning hours to a pupil even if others (the child, parents, social work, health, vol orgs etc) do not agree that this is appropriate to meet the needs of the pupil and respects their right to an education.”

It presupposes that where a child’s wellbeing is being affected by their attendance at school, that the correct approach is to reduce their attendance at school, rather than to look at e.g. reasonable adjustments that can be made for the pupil, or whether an alternative school placement would be more appropriate.

Far from being a justification for reduced attendance, the mainstreaming guidance cites, in particular, the wellbeing indicators of “Included” and “Achieving” as underlining the importance of full-time attendance at school.

It also notes the importance of supporting pupils’ inclusion and participation at school. Key expectations include: “All children and young people should be supported to participate in all parts of school life” and “All children and young people should be supported to overcome barriers to learning and achieve their full potential”.[12]

Scottish Government guidance on attendance also recognises: “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.”[13]

The grounds on which an education authority can rely on the exemption to justify providing less than a child’s full entitlement to learning hours are framed in extremely broad terms.

As detailed above, the repeated experience of children subject to informal exclusion, part-time timetables, sending home etc. is that they (or their parents) will be told that it is for the child’s benefit, in their best interests, in order to support their wellbeing. The child, or their parents frequently do not share that view.

Attendance at school is important and is closely monitored and enforced. A parent’s duty to ensure their child attends school cannot be overridden because they are satisfied that the child is being insufficiently “Nurtured” at school. Indeed, even where parents have legitimate concerns about whether their child is “Safe” at school (e.g. due to bullying) the Courts have been reluctant to accept that as a reasonable excuse for non-attendance[14].

Why would an education authority be empowered to effectively prevent a child from attending school, in circumstances where a parent (who is likely to know and understand their child’s wellbeing better) is forbidden from doing so?

This exemption would allow education authorities to reduce children’s attendance at school in circumstances which fall well below the legal threshold of “reasonable excuse” for non-attendance. As even formal exclusion from school is not regarded as a reasonable excuse for non-attendance[15], this could potentially  leave parents open to enforcement proceedings by way of referral to the children’s panel or even criminal prosecution in the Sheriff Court.

By structuring this as an exemption from the duty (in terms of subsections (3) and (4)) rather than circumstances in which different provision can be made for different purposes (or different types of pupil) (in terms of subsection (9)(b)&(c)), there is not even the ability for Scottish Ministers to set a minimum number of learning hours as a lower threshold, or to specify alternative types of provision which could be considered learning hours in circumstances where school attendance was not suitable.

 The introduction of a prescribed number of annual learning hours follows a similar pattern to the mandatory amount of early learning and childcare. Sections 47 & 48 of the Children and Young People (Scotland) Act 2014 requires education authorities to secure the mandatory amount of early learning and childcare is made available for eligible pre-school children in their area. The mandatory amount is currently prescribed as 1140 hours annually. It is not subject to exemptions as Section 2ZA is. There is no ability for the education authority to depart from their duty to make the provision available of the grounds of their view of the child’s wellbeing.

The only circumstance in which an exemption applies is in relation to looked after two year olds (s49) – in which case a specific duty to make alternative arrangements applies. The exemption cannot be used for older children.

Indeed, the exclusions guidance states explicitly that the annual hours entitlement for early learning and childcare applies even where a child has been excluded by their nursery provider – “the child still has a legal right to receive the hours they might miss due to having been excluded.”[16]

Why should it be the case that an annual entitlement hours for nursery education is secure and guaranteed for children with additional support needs, but the equivalent entitlement to learning hours in primary or secondary education is subject to a broad, discretionary and unregulated exemption? Why are children’s rights to primary and secondary education being treated as lesser than their rights to nursery education?

There is no good, accessible or direct means of challenging a decision of the education authority to provide fewer than a pupil’s full entitlement of learning hours on these grounds. There is no specific procedure that the education authority require to take, nor any obligation on them to inform the child or their parents of their rights (such as they are) or sources of advice and support.

The lack of safeguards (procedural or substantive) in the use of this exemption is of particular concern in the context that the application of an exemption engages fundamental rights, including the right to education under Article 28 of the UN Convention on the Rights of the Child, Article 24 of the UN Convention on the Rights of Persons with Disabilities, and Article 2 of Protocol 1 of the European Convention on Human Rights.

In Summary

The exemption found in Section 2ZA(4)(a) of the Education (Scotland) Act 1980:

  • directly contradicts the Scottish Government guidance on the presumption of mainstreaming, exclusion and attendance;
  • undermines the commitment in The Promise to end formal and informal exclusion for care experienced pupils;
  • can be relied on unilaterally with no procedural or substantive safeguards or protections for children affected.

It provides a legal justification for failing to provide Scotland’s most vulnerable children with their full entitlement of education and is likely to make an existing problem much, much worse.

How to fix this…

The implementation of this exemption should be delayed. This should be possible by way of regulation, as a “transitional or transitory” measure, in terms of Section 2ZA(9)(a).

A full Equality Impact Assessment and Children’s Rights Impact Assessment requires to be undertaken, as well as a fresh consultation which highlights and centres this issue to allow it to be properly considered.

Significant amendment to / partial repeal of Section 2ZA is likely to be required in due course.

If the implementation absolutely has to go ahead in the meantime, Section 2ZA(10) allows for the list at subsection (7) to be amended. Consideration should be given to adding the four key feature of inclusion: present, participating, achieving, and supported.

Consideration should be given to adding the use of this exemption where it is not appropriate and / or does not respect the child’s right to education to the list of decisions which may be referred to the First-tier Tribunal in Section 18(3) of the Education (Additional Support for Learning) (Scotland) Act 2004.

Failing which, consideration should be given to adding the use of this exemption where is it not appropriate and / or does not respect the child’s right to education to the list of specified matters in the Schedule to the Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005.

These matters could be effected by way of subordinate legislation (Section 16 and 20 of the 2004 Act, respectively).

[1] Proudfoot v. Glasgow City Council 2003 SLT (Sh Ct) 23 – “benefit of a fresh start” was found not to be a legitimate ground for exclusion

[2] ASN/D/22/01/2021 – “The responsible body deny that their decision to stop the claimant from attending classes in the school, which included moving all of her learning opportunities outwith the school building (R106, para 23), amounted to an exclusion. We are not clear what the responsible body think the difference is between their decision and an exclusion. The decision had the purpose and effect of bringing the claimant’s attendance at the school to an end. ..  There was a clear intention that the claimant should not attend school and not access any classes. On any reasonable interpretation this amounts to exclusion.”

[3] Included, Engaged and Involved Part 2: A Positive Approach to Preventing and Managing School Exclusions: “Sending home without excluding – All exclusions from school must be formally recorded. Children and young people must not be sent home on an ‘informal exclusion’ or sent home to ‘cool-off’”

[4] Included, Engaged and Involved Part 2, pg 25

[5] Included, Engaged and Involved Part 2, pg 25

[6] ASN/D/22/01/2021, supra

[7] “Guidance on the presumption to provide education in a mainstream setting” March 2019, at pg 6

[8] Cf. https://www.gov.scot/publications/summary-statistics-schools-scotland/pages/8/ and https://www.gov.scot/publications/education-outcomes-looked-children-2020-21/pages/6/#:~:text=In%202020%2F21%2C%20the%20rate,1%2C000%20pupils%20for%20all%20pupils.

[9] https://www.notengaged.com/download/SA-Out-Of-School-Report.pdf at pg 3

[10] https://thepromise.scot/resources/2021/plan-21-24.pdf at pg 22

[11] https://thepromise.scot/resources/2022/promise-oversight-board-report-one.pdf at pg 29

[12] At pg 10 “Supported”

[13] “Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools”

[14] Cf. Montgomery v Cumming, High Court of Justiciary, unreported, 17 December 1998 – https://www.scotcourts.gov.uk/search-judgments/judgment?id=634c87a6-8980-69d2-b500-ff0000d74aa7

[15] Cf. D. v. Kennedy 1988 SLT 55

[16] Included Engaged and Involved Part 2, at pg 32

Education Appeal Committees – the end?

On By Iain NisbetIn Additional Support Needs, Consultation responses, Placing RequestsLeave a comment

The Scottish Government recently consulted on a (longstanding) proposal that the functions of education appeal committees (hearing exclusion appeals, and most placing request appeals) be transferred to the Health and Education Chamber of the First-tier Tribunal for Scotland.

With the assistance of colleagues, I prepared a response on behalf of My Rights, My Say. The edited highlights of the response are below.

Continue reading “Education Appeal Committees – the end?” →

Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill

On By Iain NisbetIn Consultation responses, Equality Act 2010, School EducationLeave a comment

The Education, Children and Young People Committee is the lead committee for the Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill, a private member’s Bill, introduced by Pam Duncan-Glancy MSP.

The period for interested parties to submit their views on the Bill to the Committee has recently ended. Here is a summary of my submissions.

Continue reading “Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill” →

School uniform consultation

On By Iain NisbetIn Consultation responses, Equality Act 2010, Exclusion, School EducationLeave a comment

Recently, the Scottish Government issued a consultation on national school uniform guidance that they are planning to issue. The main stated aims of the new guidance will be to reduce the costs for families, and to comply with equalities obligations.

The guidance is to apply to all schools in Scotland, whether local authority schools, independent schools, or grant-aided schools.

For a consultation document, it already has some very clear ideas about what the proposed guidance will, and will not contain.

So, we know that the guidance will not:

  • require the adoption of specific school uniform items;
  • be a national school uniform policy – instead it will help schools and education authorities to come up with their own policies;
  • abolish school uniform altogether.

And, we know that the guidance will cover:

  • the affordability of school uniform;
  • equalities considerations, aligned to protected characteristics;
  • clothing and equipment for PE, physical activity and sport; and
  • the use of exclusion as a compliance measure.

Finally, there are a set of draft principles, which the consultation document invites comment on. The section begins “national school uniform policy should ..” – which is odd, since the same document has already assured us “It is not intended that there will be a national school uniform policy which is applied in all schools – therefore this is not the subject of this consultation and is not in scope.”

Anyway, the draft principles are that national school uniform policy should:

  • Be informed by the views of children and young people
  • Apply to education authority, grant-aided and independent schools
  • Seeks to reduce the cost of school uniform for families Supports equity in relation to school uniform
  • Promotes equality, including recognising specific matters relating to religion and belief, disability, sex and gender
  • Applies to all uniform uses, including PE and senior phase
  • Recognises the need for practicality, including in relation to seasonal needs
  • Reflects sustainable approaches to school uniform
  • Continues the position of no legal requirement upon pupils to wear school uniform
  • Considers appropriate response for persistent non-wearing of uniform, recognising ethos and culture of promoting attendance and reducing absence
  • Recognises and builds upon current good practice within schools
  • Does not introduce unnecessary barriers to school uniform policy and practices.

The launch of the consultation prompted the Daily Telegraph to speculate that “Scottish pupils could be told to wear gender-neutral school uniforms” despite there being no mention of this at all. The article also claims that “SNP and Greens reveal plans for a national uniform policy to cut costs for parents and promote equality in classrooms”. In fairness, as we’ve discussed above, the consultation document is sending mixed messages on whether there is to be a national uniform policy or not. The article is worth looking at for the photo of Fettes School’s pink striped blazers alone.

I have responded to the consultation in brief, and a summary of my thoughts are as follows.

National guidance to assist schools in making sure that they can comply with their equalities duties would, no doubt, be helpful. Guidance to assist schools in reducing the cost of school uniform is also to be welcomed. I agree that it would not be appropriate to have a nationally mandated school uniform.

There is mention of “the use of exclusion as a compliance measure” as being within the scope of the guidance. I can only hope that this means that the guidance will make it clear that it is never appropriate to use exclusion as a means of ensuring compliance with school uniform policy.

In the national exclusions guidance (Included, Engaged & Involved Part 2, 2017) it is made clear that this would include sending pupils home. Therefore, the implication should be made clear that pupils should not be sent home to change in the event of not wearing school uniform – especially in the state sector.

There seems to me to be a fundamental discrepancy between two of the principles listed.

On the one hand, there is a statement that there is “no legal requirement upon pupils to wear school uniform” while at the same time considering “appropriate responses for persistent non-wearing of uniform”.

If it is not a legal requirement, then there ought not to be punitive measures for a breach of uniform policy. If there are punitive or disciplinary measures set out in national guidance for a failure (persistent or otherwise) then it is misleading to suggest that there is no legal requirement to wear school uniform.

Hopefully, what is intended here is that the “appropriate responses” referred to are supportive measures, rather than disciplinary ones.

Proposed Disabled Children and Young People (Transitions) (Scotland) Bill – consultation response

On By Iain NisbetIn Additional Support Needs, Consultation responses, Equality Act 2010Leave a comment

Johann Lamont MSP recently launched a consultation on a proposed private member’s Bill in the Scottish Parliament.  The consultation period for the Disabled Children and Young People (Transitions) (Scotland) Bill ended today (22 January 2020).

The proposals for the Bill were developed with the assistance of Camphill Scotland and Inclusion Scotland.  As the consultation document points out:

At age 16, the aspirations of disabled and non-disabled young people are broadly the same. By 26, however, disabled people are more likely to be out of work than their non-disabled peers, and are three times more likely to feel hopeless and to agree that “Whatever I do has no real effect on what happens to me”.

The Bill, as set out covers three main big ideas:

  1. A National Transitions Strategy;
  2. A Scottish Government Minister with special responsibility for transitions; and
  3. Transitions plans for every child and young person with a disability.

In principle, the Bill addresses some big issues, but I do think the details and structure proposed need some work.

My full consultation response can be found below.

Continue reading “Proposed Disabled Children and Young People (Transitions) (Scotland) Bill – consultation response” →

Incorporating Children’s Rights (Consultation Response)

On By Iain NisbetIn Consultation responses2 Comments

The Scottish Government is committed to enshrining the United Nations Convention on the Rights of the Child (UNCRC) into the domestic law of Scotland. The overall aim is to ensure that all policy, law and decision-making in Scotland takes into account children’s rights and empowers children and young people to know and understand their rights – asserting and defending them where that is needed.

This commitment is great news in principle, but how it will be incorporated into the law of Scotland is a detail that has not yet been resolved. Wholesale legislative change? Or piecemeal changes to domestic legislation ? The Scottish Government have put this question – and other implementation issues – out to Consultation.

It will come as no surprise to regular readers that my preference is for the most comprehensive incorporation possible. My response supports full incorporation of the UN Convention into law by drawing on the mechanisms used to embed the European Convention of Human Rights into UK law (and the model adopted by the Equality Act 2010 in relation to the public sector equality duty). By combining the two approaches, public authorities would be explicitly prohibited from acting in a way which is contrary to the UN Convention and breaches could be challenged in the Courts.

My response to the consultation is reproduced (with some editing for readability) below.

Continue reading “Incorporating Children’s Rights (Consultation Response)” →

Changing places consultation

On By Iain NisbetIn Consultation responses, Equality Act 2010, Inclusion, Pupil Welfare / WellbeingLeave a comment

Accessible toilets or “disabled toilets” do not necessarily meet the needs of all people with a disability.

People with profound and multiple learning disabilities, as well people with other physical disabilities such as spinal injuries, muscular dystrophy and multiple sclerosis may need the additional equipment and space afforded by a Changing Places toilet in order to be able to use the toilets safely and comfortably.  This post from the Quinns, Trains and Cerebral Palsy blog explains things much better than I can.  And this one…

It can, however, be difficult to find a Changing Places toilet.  A growing campaign, led by the Changing Places Consortium is calling for  for Changing Places toilets to be installed in all large public places.

The Scottish Government has just launched a consultation on building standards for changing places.  The proposal is

The proposal is to require Changing Places, through building standards, in certain types of larger new buildings.  Such regulations would go some way to increase the provision nationally, albeit over a period of time.

It is a welcome step, and the detail of the regulation will be important.  For example, the consultation at present only includes secondary schools, and only where community facilities are also provided by that school.  This is a missed opportunity, and consideration should be given to widening the requirement to include all secondary schools, special schools and primary schools (perhaps subject to a minimum size).

While this is not an educational piece of legislation, schools are already exempt from the second requirement of the reasonable adjustments duty under the Equality Act 2010, which might otherwise have required such changes in existing buildings, depending on the various factors which might be at play (including cost).  Most education authorities’ Accessibility Strategies are not so ambitious as to include major works on things like Changing Places toilets.  And, of course, many new build schools have opened in recent years, pre-dating these regulations.

The presumption of mainstreaming and inclusion for all pupils requires that all pupils can access safe and suitable toilet facilities at school.

The consultation runs until 13 May 2019.  Please read it, and respond – and encourage others to do so as well.

 

 

Mainstreaming, presumably.

On By Iain NisbetIn Additional Support Needs, Consultation responses9 Comments

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

On By Iain NisbetIn Additional Support Needs, Consultation responses, School governanceLeave a comment

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

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

On By Iain NisbetIn Additional Support Needs, Consultation responsesLeave a comment

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