Excluded from school – what next?

The research evidence on exclusions from school make for grim reading.

The 2013 Edinburgh Study on Youth Transition and Crime found that pupils who were excluded from school at age twelve were four times more likely to be jailed as adults.

Boys, children living in single parent families, and pupils from the poorest communities were most likely to be excluded from school. Equally badly behaved pupils from more affluent areas and those from two parent families were accorded greater tolerance and, as a consequence, were far less likely to be expelled.

The study findings show that one of the keys to tackling Scotland’s high imprisonment rates is to tackle school exclusion. If we could find more imaginative ways of retaining the most challenging children in mainstream education, and ensuring that school is a positive experience for all Scotland’s young people, this would be a major step forward.
– Professor Susan McVie, Co-director of the study

Additionally, Scottish Government statistics from December 2015 reveal that pupils with additional support needs are more than four times more likely to be excluded than pupils with no additional support needs.

And all of this records only formal exclusions, for which there is a paper trail. By definition, the use of “informal exclusions”, cooling off periods, invitations to remove a child, part-time timetables and other means of denying a child their right to education – are not recorded and therefore not widely understood. Anecdotally, this affects children with additional support needs and/or disabilities disproportionately.

Parents (and children with capacity – usually aged 12 or over) have a right of appeal against a school exclusion, whether it is a temporary exclusion or a removal from the school roll.

As things stand, an appeal will be heard, in the first instance, by the education appeal committee. After that, the parent, young person or child has a further right of appeal to the Sheriff Court. The appeal committee has the power to confirm or overturn the exclusion, and to vary any conditions for readmission. The Sheriff, on appeal, has the same powers.

In terms of the Tribunals (Scotland) Act 2014, this jurisdiction will be transferred to the First-Tier Tribunal for Scotland in due course – which is a very welcome change. A right of further appeal will lie to the Upper Tribunal for Scotland. This should make the process of appeal more transparent, independent and accessible.

The right of appeal only applies in relation to public schools, i.e. those managed by the local authority – although some independent schools may have equivalent procedure in place (e.g. an appeal to the board of governors).

Where the excluded child has a disability, an exclusion from school may amount to unlawful disability discrimination in terms of the Equality Act 2010. This is a complex piece of legislation and it can be difficult to tell without specific legal advice whether an act of discrimination has taken place.

A disability claim can be made in respect of any school exclusion, whether the school is an independent, grant-aided or education authority school. Such claims must be made within six months of the exclusion, and are heard by the Additional Support Needs Tribunals for Scotland. The Tribunals have much broader powers that the appeal committee, which might include ordering an apology, staff training, a change in the school’s (or Council’s) policy on exclusions etc. The Tribunal cannot, however, make an order for compensation.

Where a child with additional support needs has been excluded from school, do remember that there are routes by which that decision can be challenged. Particularly where the use of exclusion has become commonplace or is adversely affecting the child’s education or wellbeing, an appeal or a disability claim may be well worth considering.

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Religious observance in special schools

As you may have read elsewhere, the Humanist Society of Scotland are bringing a judicial review against the Scottish Government’s decision not to review the law in relation to religious observance in schools.  At present, the law affords an opt-out for parents, but not for children.

Links:

Following on from recommendations from the UN Committee on the Rights of the Child at the last UK “inspection”, the Humanist Society called upon the Scottish Government to review the law to allow older children to take their own decision.  The Scottish Government have refused, stating:

“There is no equivalent statutory right to withdraw afforded to children and young people. However many schools will find it helpful and sensible to include young people in any discussions about opting out, ensuring their wishes are aired.”

My own views on this are already on record elsewhere, and have been for some time:

“The right to withdraw from religious instruction or observance is given to the parent of a pupil, rather than to the pupil themselves. In light of more recent legislation, including the Human Rights Act 1998 (cf. art.9: freedom of thought, conscience and religion) and the Equality Act 2010, schools should also have regard to the views of the child in relation to such matters.”

And what does the law actually say?  It can be found in three main places, which is not always appreciated.  As always the legislation is written as if all children have only one parent (or two who always agree on everything) – there is no rule for what happens if parents disagree about religious observance!

First, Section 9 of the Education (Scotland) Act 1980 sets out the basic rule, under the section heading “Conscience clause”, which is to the effect that the parent of a pupil at a public school has the right to withdraw them from “any instruction in religious subjects” and “any religious observance” in any public school or grant-aided school.  Interestingly, the term “pupil” is used here, rather than child – so the right remains with parents in relation to pupils even after they have turned 16.  Remember also that this is a right to withdraw, not a right to ensure participation.  Arguably – and this may indeed be what the Scottish Government end up arguing – a child or young person who wishes to withdraw from religious observance could insist on other rights (the Human Rights Act 1998 or Scotland Act 1998 in terms of their Article 9 rights) to achieve that result.  There is nothing in this preventing the school from granting such a request.

The children’s rights issue arising from Section 9 would be where a pupil wishes to participate in religious observance – and is prevented from doing so by reason of a parent’s withdrawal request.  An interesting cause for the Humanist Society to be taking up!

Section 10 of the Education (Scotland) Act 1980 (“Safeguards for religious beliefs”) applies to pupils who board at a residential school (or at a hostel for educational purposes).  This affords parents the right to insist on the child being permitted to attend worship, receive religious instruction and participate in religious observance in accordance with the tenets of their parents’ religion.  There is no equivalent to this for the child, but again the duty on the school is to permit the child to do these things (outside school hours and not incurring unreasonable costs) – there is no requirement to compel the pupil to take part.  Nor is there anything preventing the school from allowing the pupil to participate in worship in relation to their own religious beliefs (if they differ from those of their parents).

Finally, Regulation 12(3) of the Schools (General) Regulations 1975 applies to pupils at a special school (includes a special unit within a mainstream school).  This ensures that no education authority may compel a pupil to attend religious observance or receive religious instruction against the wishes of their parents.  Further, it requires the authority to give the parent an opportunity to express their wishes – a requirement not present in the other sections.  Again, the children’s rights issue which may arise is that of a child who wishes to attend religious observance – although this could be permitted, so long as it is not compelled!

The law is no doubt in need of revision – even the terminology barely fits modern educational practice – particularly in non-denominational schools.  However, the Scottish Government’s position is that the law does comply with pupils’ Convention Rights (when read with the guidance and Curriculum for Excellence).  Given the nature of the duties set out above, this may just be correct – although there may be a question mark over how well schools understand this.  If there is an area where the law may breach a pupil’s Convention rights it is for the child who wishes to attend religious observance, but is prevented from doing so because of their parent’s decision to withdraw them.

 

Reasonable adjustments for disabled pupils

Some pupils with additional support needs are also disabled and, as such, enjoy the additional protections of the Equality Act 2010.

One of these additional protections is the reasonable adjustments duty.

The duty to make reasonable adjustments includes three requirements:

  1. adjustments to avoid substantial disadvantage arising from a provision, criterion or practice (“PCP”);
  2. adjustments to avoid substantial disadvantage from the physical features of a building;
  3. adjustments to avoid substantial disadvantage by providing an auxiliary aid (or auxiliary service).

The second requirement does not apply to schools. In Scotland, the Education (Disability Strategies and Pupils Educational Records) (Scotland) Act 2002 apply instead. This Act requires responsible bodies for schools to draft an accessibility strategy, which sets out planned improvements to the physical accessibility of the school (among other things). Cf. “Planning improvements for disabled pupils’ access to education: Guidance for education authorities, independent and grant-aided schools” (Scottish Government Guidance).

A failure to comply with a reasonable adjustments duty in relation to any disabled person amounts to unlawful discrimination.

The reasonable adjustments duty for schools applies in relation to:

  1. deciding who is admitted to the school; and
  2. providing education or access to a “benefit, facility or service” (this might include school lunches, uniform policy, playtimes, out of school trips, after-school clubs, assemblies, discipline etc. etc.).

In deciding whether an adjustment would be reasonable or not, you should read and consider the Technical Guidance for schools in Scotland, which gives a list of factors to bear in mind together with several useful examples.

Without intending to be exhaustive, and in no particular order, the following are some of the factors that are likely to be taken into account when considering what adjustments it is reasonable for a school to have to make:

  • The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;
  • The extent to which support will be provided to the pupil under the Education (Additional Support for Learning) (Scotland) Act 2004, as amended;
  • The resources of the school and the availability of financial or other assistance;
  • The financial and other costs of making the adjustment;
  • The practicability of the adjustment;
  • The effect of the disability on the individual;
  • Health and safety requirements;
  • The need to maintain academic, musical, sporting and other standards;
  • The interests of other pupils and prospective pupils.

Technical Guidance (6.29)

Example:
A pupil with learning difficulties is excluded for repeatedly getting up from his seat during lessons and disrupting other pupils. It is the school’s policy that repeated disruptive behaviour is punished by exclusion. The school is under a duty to make reasonable adjustments to its policy, which might mean disregarding some of the disruptive behaviour and working with the pupil to find a way in which to help him to remain in his seat during lessons.
Technical Guidance (4.12)

Example:
A visually impaired child requires printed handouts to be prepared in 24pt font or larger. This can easily be accommodated by ensuring that fonts are reset to this size prior to any documentation being printed.
Technical Guidance (6.45)

A school’s duty to make reasonable adjustments is often referred to as an “anticipatory duty” and it is owed to disabled pupils generally. Therefore, schools must plan ahead and consider in advance what disabled pupils may require, rather than simply responding to difficulties as they arise.