Category: Exclusion

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

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.

Exclusion statistics 2020/21

On By Iain NisbetIn Exclusion, School Education1 Comment

The Summary Statistics For Schools In Scotland 2021 have been released, with the more detailed stats being available as of March 2022. These statistics are based on the annual pupil census (conducted in September 2021) and the attendance, absence and exclusion returns for the 2020 to 2021 school year. As always, I am particularly interested in the exclusion statistics.

As you may be aware, exclusion statistics are collected only every other year, so the previous data is from 2018/19. Since then there has been a 44% drop in the number of exclusions – with education authorities noting that Covid-19 related school closures as a reason for this reduction.

In the whole of Scotland, for the last academic year, only one pupil was permanently excluded from a (local authority) school – referred to in the statistics as being “Removed from register”. I am not convinced that this is accurate. My (admittedly anecdotal) impression is that education authorities are taking a leaf out of the independent schools’ playbook and finding other, less formal ways of removing pupils from their schools. One case I dealt with earlier this year involved the education authority insisting that they had not excluded my client, they had merely decided to move all her learning opportunities outwith the school building!

Boys are more than three times more likely to be excluded than girls. Depressingly, pupils with additional support needs are almost five times more likely to be excluded, and pupils living in areas most associated with deprivation are four times more likely to be excluded than those in the least deprived areas. The summary statistics don’t specifically highlight the figures for looked after children, but these have not historically been a pretty picture – despite recent commitments to end the practice.

It remains the case then, that exclusion – which is known to have long-term damaging effects, and which is not effective as a management tool – is disproportionately targeted on our most vulnerable pupils. Disabled pupils facing exclusion have an effective remedy available in the Health and Education Chamber Tribunal, which has found more than one education authority to be systemically discriminating against disabled pupils in their exclusion policies and procedures. However, looked after children, and those from deprived areas have to make do with the largely ineffective education appeal committee appeals process.

Promises, promises

On By Iain NisbetIn Additional Support Needs, ExclusionLeave a comment

Following the report of the Independent Care Review came The Promise which is effectively the vehicle for driving forwards the actual implementation of the changes required by the review. Yesterday, Plan 21-24 was published.

Plan 21-24 focuses on the period from 1 April 2021 until 31 March 2024. It outlines a set of outcomes that should be concluded by 2024.

There is a lot in the plan, with further detail to follow, but I wanted to take a quick look at what it says about the right to education. There are five specific outcomes which, according to the plan, will be in place “By 2024”:

  1. Care experienced children and young people will receive all they need to thrive at school. There will be no barriers to their engagement with education and schools will know and cherish their care experienced pupils.
  2. School improvement plans will value and recognise the needs of their care experienced pupils with robust tracking of attendance and attainment so that support can be given early.
  3. Care experienced young people will be actively participating in all subjects and extra-curricular activities in schools.
  4. The formal and informal exclusion of care experienced children from education will end.
  5. Schools will support and ensure care experienced young people go on to genuinely positive destinations, such as further education or employment.
Continue reading “Promises, promises” →

Potential Energy (Part 8)

On By Iain NisbetIn ASL Review, Exclusion, Inclusion, Pupil Welfare / Wellbeing, School EducationLeave a comment

The section of the ASL Review which covers Theme 7: Relationships and behaviour is on the short side for such an important topic. But that it because it is largely reiterating things which are already well known and have been covered well in recent years by other documents and initiatives, including:

In particular, the review recognises as a “key point of principle” that:

All behaviour is communication.

Included, Engaged and Involved Part 2
Continue reading “Potential Energy (Part 8)” →

Potential Energy (Part 7)

On By Iain NisbetIn Additional Support Needs, ASL Review, Equality Act 2010, Exclusion, School EducationLeave a comment

Following on from the importance placed on relationships and trust as key values and attributes of staff working with children and young people with additional support needs under Theme 5; we now turn to Theme 6: Relationships between Schools and Parents and Carers.

The review begins by affirming the importance of effective working relationships. Where there are “honest and trusting relationships .. characterised by mutual listening and respect” this allows for “sharing views and airing disagreement without conflict.”

Continue reading “Potential Energy (Part 7)” →

Placing request timescales amended

On By Iain NisbetIn Additional Support Needs, Exclusion, Placing Requests, School Education1 Comment

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

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

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

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

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

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

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

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

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

Observations

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

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

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

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

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

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

Image by mac231 from Pixabay

Ashdown House School case (a summary)

On By Iain NisbetIn Equality Act 2010, Exclusion1 Comment

I bring news of an interesting disability discrimination case involving an independent school in England.  The case was determined by the Upper Tribunal, which is basically the appeal route as exists in Scotland from the Health and Education Chamber (previously known as the Additional Support Needs Tribunals).

The case is that of Ashdown House School v. JKL & MNP (not their real names!) and involved a pupil who was referred to for the purposes of the case as “Bobby”.

The facts of the case

Bobby was ten years old and a pupil at Ashdown House School, who has ADHD, sensory processing difficulties and emotional and social difficulties arising from trauma in his early childhood and in the womb.  He is a disabled person in terms of Section 6 of the Equality Act 2010.

He was permanently excluded from the School on 9 February 2019.  He was excluded for aggressive behaviour, including placing another pupil in a headlock and what the school describes as “37 incidents of unprovoked aggression”.  The school admitted that the exclusion amounted to unfavourable treatment, but maintained that the exclusion was a proportionate means of achieving a legitimate aim.  The aim in this case was to ensure the health and safety of staff and pupils at the school.  For their part, the parents accepted that this was a legitimate aim, but not that the school had acted proportionately.

The Tribunal (at first instance) found that the exclusion was not proportionate, and was therefore unlawful discrimination.  This was for a number of reasons.  The Tribunal found that while the school had made a number of reasonable adjustments, there were other reasonable adjustments which could have been made (including anger management sessions, consulting with the local authority, and allowing parents to seek a review of Bobby’s Education, Health and Care Plan (EHCP), or seeking advice from CAMHS regarding his medication).  The Tribunal also found that the exclusion came “like a bolt out of the blue” in that neither pupil nor parents had been warned it was a possible consequence of the incidents.  There was also evidence that other violent incidents within the school (involving other, non-disabled pupils) had been dealt with less severely.

The Tribunal ordered Bobby’s immediate readmission, and that the school formally apologise to Bobby.

The school appealed to the Upper Tribunal.

Legal questions arising on appeal

In considering the appeal, the Upper Tribunal had to consider four discrete points:

  1. Does the First-tier Tribunal (SENDIST) have the power to order reinstatement of an excluded pupil to school?
  2. How can decisions of the First-tier Tribunal (SENDIST) be enforced, if not by the Tribunal itself?
  3. In the light of the courts’ traditional reluctance to order specific performance of contracts involving personal service/contact or supervision, is an order to reinstate a pupil at an independent school (in terms of a contract between the parents and the school) appropriate?
  4. Is it appropriate to order an apology in special educational needs and disability (SEND) cases?

The Upper Tribunal’s decision

The Upper Tribunal dismissed the appeal, and Bobby was – ultimately – allowed to return to school.  I understand that he also received his apology.

The school argued, that in the case of an independent school, the Tribunal would be restricted to making a declaration of discrimination, and making recommendations for the school to consider.  The Upper Tribunal rejected this argument. The wording of the Act permits Tribunal to make such order as it thinks fit (excluding an order for payment of compensation).  This wording obviously includes a power to order reinstatement.

At some considerable length, the Upper Tribunal considers how one of its decisions might be enforced, if not complied with.

Although the Tribunal itself does not have the power to enforce its own decisions in that regard, one of the parties to the action can rely on the inherent power of the High Court to commit for contempt of court in the event of non-compliance with the order or the [Equality and Human Rights Commission] may itself take proceeding under s.24 of the 2006 Act to achieve the same end. The School, however, is not amenable to judicial review because it is not a public body and in expelling the pupil it was not exercising public law functions.

Of course, in Scotland, the President of the Health and Education Chamber has specific powers to monitor the implementation of Tribunal decisions.  In the event that such decisions are not implemented, a referral to the Scottish Ministers (who have enforcement powers and mechanisms in relation to both public and independent schools) may be made.

Edit – while it is true that the Scottish Ministers do have enforcement powers in relation to both public and independent schools, the powers of the President under Rule 12 of the Tribunal’s Procedure Rules do seem to be limited to decisions affecting education authorities.  They would not be available where the responsible body was the proprietor of an independent school.  Apologies.  In such cases, a parent or pupil might approach the Scottish Ministers directly (or the Registrar of Independent Schools) to progress their complaint.

The Upper Tribunal determined that while the Tribunals should have regard to the historic reluctance of the courts to impose specific performance of a contract which involves personal service and supervision, and the reasons for that reluctance, this did not preclude the Tribunal from making such an order in appropriate circumstances.

The Upper Tribunal suggested that it would be “sensible for a Tribunal considering a disability discrimination claim in the future to consider matters such as whether it is practicable to make an order for reinstatement and, in cases where the applicant has caused or contributed to the expulsion, whether it would be just to order reinstatement.”

In finding that an order for an apology was appropriate in these circumstances, the Upper Tribunal set out the following guidance for future cases (likely to be relevant in Scottish cases, too) repeated largely verbatim below:

  • The Tribunal does have the power to make an order for an apology.
  • An apology may have a wider purpose than merely preventing further discrimination against the child in question. To the extent that an apology is an assurance as to future conduct, an order that there be an apology gives teeth to a declaration of unlawful discrimination.
  • There can be value in an apology: apologies are very important to many people and may provide solace for the emotional or psychological harm caused by unlawful conduct. An apology might reduce the mental distress, hurt and indignity associated with a permanent exclusion. It might also assist with recovery, forgiveness and reconciliation. An order that there be an apology can be regarded as part of the vindication of the claimant.
  • A tribunal should consider whether the apology should more appropriately be made to the child or to their parents. In the case of very young children the latter may be more appropriate for obvious reasons.
  • An order to make an apology may well be appropriate when there is already an acceptance that there has been discrimination or unlawful conduct.
  • However, the fact that there has been a contested hearing and that the respondent has strenuously disputed that there has been any discrimination or unlawful conduct is not decisive against ordering an apology.
  • Nevertheless, particularly where there has been a dispute or a contested hearing, the tribunal should always consider whether it is appropriate to make an order and bear in mind that it may create resentment on one side and an illusion on the other, do nothing for future relations and may make them even worse.
  • Before ordering an apology, a tribunal should always satisfy itself that it will be of some true value.
  • A tribunal should always be aware that there may be problems of supervision if it accepts responsibility for overseeing the terms of the apology which can result in drawn out arguments over wording.

Conclusion

The decision of the Upper Tribunal in this case is likely to be of interest and use in a number of Scottish cases, especially those involving questions of admission and exclusion to an independent school.  However, the points of guidance on the question of an apology are of broader application and I anticipate will be widely cited within the Health and Education Chamber.

 

Too many children with autism are let down by schools and end up in prison

On By Iain NisbetIn Exclusion, Inclusion, Pupil Welfare / Wellbeing3 Comments

By Chrissie Rogers, Professor of Sociology, University of Bradford

 

For many young people, school can be a difficult place. And for some, it can be just about impossible. Negative experiences in school can have harmful long-term effects on pupils with autism spectrum conditions.

Official figures show that children, are increasingly being suspended or expelled from school because of “behavioural problems” – many of which include children on the autism spectrum. Some regions in the UK have experienced a 100% increase in these types of exclusions since 2011.

So despite policy rhetoric on “inclusive education” – where children ought to be educated in mainstream schools – recent figures show school exclusions are increasing: from 6,685 pupils to 7,720 between 2015-2016 and 2016-2017.

In my current research I interviewed mothers of adult children with autism and other social, emotional and mental health problems. They told me how their young sons had been a challenge in school. And how despite their requests for help, their sons received little support and ended up in the criminal justice system.

Estimates suggest that 30% of prisoners have a learning difficulty or disability and 60% have problems with communication – though this is arguably a conservative estimate, as many inmates choose to hide their disabling condition.

No help or support

Mothers in my research talked to me about how their sons were “different”. They were violent to other children and teachers as well as their own families.

All the mothers told me they felt something was “not quite right” with their child. And because the support was not forthcoming at school, this negative behaviour escalated and then as these boys got older, they ended up in prison.

One mum, Sorcha, told me her son “was made out to be the demon child of the school. He had his first exclusion in September 2004, so he was about 10 then”. Another mum, Elaine, spoke of her son Harry: “He was a difficult child for school, he’s disruptive [and] was getting into so much trouble.”

Many schools are failing to meet the needs of autistic children.
Shutterstock

Udele, explained how she had received a call from the headmistress, to fetch her son after he assaulted a teacher. “I went, you’d better call the police then. He was 10”.

Failed by the system

But a lack of support was not just isolated to the families. One senior teacher who works in a “special school” explained how hard it is to help. She said that the combination of puberty and autism can make things very difficult:

At the age of 14 there’s so much going on for them. One boy got bad grades and didn’t know what to do. He got involved with another pupil who had been excluded and was waving a knife – he got arrested.

The mothers also spoke to me about their experiences of the criminal justice system. Trudy explained how, when her son was on remand, she “felt squeezed from both sides”. She said:

My instincts were telling me that my son was getting worse and that we needed help and the professionals were telling me he was fine.

Another mother, Elaine, told me how she was “totally broken”:

I just feel like I’m standing on the edge of the cliff and I don’t know if I’m going to fall. It’s scary.

The mothers in my research all spoke of the overwhelming challenges of dealing with their child’s disability while moving through the bureaucracy and barriers if the school and criminal justice systems.

They spoke of a lack of support, lack of access to professional help and an overwhelming lack of understanding about their son’s disability, and the impact this had on their lives.

The problem with education

Under the current UK education system – where everything is based on grades and targets – there is little room for children who disrupt the smooth running of the school. These children are all-too often excluded and made to feel that they are worthless – as one teacher explained:

One kid wanted to go back into mainstream [school], but by the time he was 15, he realised this wasn’t going to happen – he ended up in prison.

For as long as education focuses solely on academic achievement and continues to demand results rather than learning, children and their families will continue to be failed by the system. And, as my research shows, once a criminal pathway is trodden, it is incredibly difficult to find a way out.



Read more:
Britain’s criminal justice system doesn’t know what to do about autism

This means those who need support the most often end up incarcerated. Both Elaine and Udele’s sons (still now only in their 20s), were in “special schools” and continue to be in and out of the criminal justice system. I interviewed Elaine three times and her son Harry, once. Between her interviews, Harry returned to prison.

Rethinking learning

If more support and intervention in the education system was to occur before the police got involved, then these young people would be less likely to end up incarcerated and at the bottom of a human hierarchy.

But for this to happen, there needs to be a rethink of what education is actually about. Because it is clear that the restrictive and damaging nature of the current system just doesn’t work for some pupils.

If instead, schools could help children to learn creatively and open up their minds to new possibilities outside of tests and league tables, then it is likely that more children would stand a better chance of staying out of the criminal justice system and reaching their full potential.The Conversation

Chrissie Rogers, Professor of Sociology, University of Bradford

This article is republished from The Conversation under a Creative Commons license. Read the original article.