In this, the sixth part of a series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the fourth and final of the “Key features of inclusion” : Supported.
In this, the fifth part of a series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the third of the “Key features of inclusion” : Achieving.
In this, the fourth part of this series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the second of the “Key features of inclusion” : Participating.
The Christmas holidays are now over, and it’s time I got back to the old blogging. In the third part of this series on the new (2019) Guidance on the presumption to provide education in a mainstream setting, I will be looking at the first of the “Key features of inclusion” : Present.
In the first part of this series (Mainstreaming, I presume … (Part 1)) I looked at the legislative basis for the presumption of mainstreaming. In this next part, we will be looking at the question of inclusion.
The term “inclusion” is not used in the Standards in Scotland’s Schools etc. Act 2000, or in the Education (Additional Support for Learning) (Scotland) Act 2004. In fairness, it is a difficult concept to define in statutory terms. However, the explanatory notes to the 2000 Act, talk about the presumption of mainstreaming in these terms: “This section aims to establish what is effectively a presumption in favour of ‘mainstream education’ for all children in Scotland. It will strengthen the rights of children with special educational needs to be included alongside their peers in mainstream schools.” So, a right to inclusion has always been the intention of the legislation.
From an international perspective, it is Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which best outlines the position, with its requirement on signatories (including the UK) to “ensure an inclusive education system at all levels”.
It goes on to require:
a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
c) Reasonable accommodation of the individual’s requirements is provided;
d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
Article 24(2), UNCRPD
The UNCRPD is not currently incorporated into UK or Scots law in the same way that the European Convention on Human Rights is, or the UN Convention on the Rights of the Child will be (under current proposals). However, it remains an international obligation (albeit one which the UK Government have accepted with two fairly substantial reservations – see ALLFIE on Article 24). Governments, including the Scottish Government, are required to have regard to the Convention in making law and policy and to take steps to ensure its effective implementation. The Convention can also be referred to by individuals taking legal action, as an aid to the interpretation of existing law (as it is presumed that neither Westminster nor Holyrood Parliaments would legislate in a way which is incompatible with its international obligations).
“A Fairer Scotland for Disabled People” is the Scottish Government’s delivery plan for the UNCRPD to 2021. However, this does not make specific mention of the right to inclusive education, or of Article 24, or of the presumption of mainstreaming. It does make mention of “Disabled people are visible and participating within communities, learning and education, volunteering and employment.” and “Equal opportunities for disabled people in education and employment.” – which captures some of it, I suppose.
The Ministerial Foreword to the guidance, however, could hardly be clearer in its intentions re: inclusion, with the Cabinet Secretary for Education spelling out the benefits of inclusion: “affords all children and young people the opportunity to be a part of a community, boosting their emotional wellbeing and aiding the development of social skills.” as well as being clear on the limitations of the presumption of mainstreaming: “Being present in a mainstream school should not be the primary marker of successful inclusion.” There is also, a very welcome (and child-centred) acknowledgement of the importance of how inclusion is experienced by the individual pupil.
The introduction to the guidance then gets to grips with what is meant by “inclusion”. This is helpful, actually. The “Scottish vision for inclusive education” is pretty vague as you might expect – but usefully links an inclusive approach to the achievement of equity and excellence (the tiresome two watchwords of modern education policy in Scotland).
What is more helpful, in my view, is the identification of four key features of inclusion:
The guidance goes on to consider each of these features in turn, as will I …
Edited (18 November, 2019) following helpful input from A24 Scotland.
In March of this year, the Scottish Government published revised guidance on the presumption of mainstreaming. It is now November, and I have not yet blogged about it (although I did post my consultation response on the draft revised guidance). I think my inaction may be due to the size of the task, so I have decided to break it down into smaller chunks, and deal with it a bit at a time.
We’ll start with what the law says about this. Introduced as an amendment during the passage of the Standards in Scotland’s Schools etc. Act 2000, the ‘presumption of mainstreaming’ is found in Section 15 of that Act.
The phrase ‘presumption of mainstreaming’ is an odd one to start with. It is not used in the legislation at all. The crossheading used in the Act is “Requirement for mainstream education” and the section heading is “Requirement that education be provided in mainstream schools”. In legal terms, there is no such thing as a mainstream school, and so the section itself, as we will see, takes the form of a prohibition on providing education in special schools (with some exceptions).
Interestingly, the guidance itself takes a slightly different title: “Guidance on the presumption to provide education in a mainstream setting“. So, for the same single section we have: mainstream education, mainstream schools and mainstream setting. What the difference is between these three, if any, is not clear.
The Section itself says this:
15 Requirement that education be provided in mainstream schools
(1) Where an education authority, in carrying out their duty to provide school education to a child of school age, provide that education in a school, they shall unless one of the circumstances mentioned in subsection (3) below arises in relation to the child provide it in a school other than a special school.
(2) If a child is under school age, then unless one of the circumstances mentioned in subsection (3) below arises in relation to the child, an education authority shall, where they—
(a) provide school education in a school to the child, provide it in; or
(b) under section 35 of this Act, enter into arrangements for the provision of school education in a school to the child, ensure that the arrangements are such that the education is provided in, a school other than a special school.
(3) The circumstances are, that to provide education for the child in a school other than a special school—
(a) would not be suited to the ability or aptitude of the child;
(b) would be incompatible with the provision of efficient education for the children with whom the child would be educated; or
(c) would result in unreasonable public expenditure being incurred which would not ordinarily be incurred,and it shall be presumed that those circumstances arise only exceptionally.
(4) If one of the circumstances mentioned in subsection (3) above arises, the authority may provide education for the child in question in a school other than a special school; but they shall not do so without taking into account the views of the child and of the child’s parents in that regard.
The legislation is fairly clear on its expectations, and it is fair (to my mind) to describe this as amounting to a ‘presumption’ of mainstreaming.
One interesting quirk of all of this is that the Education (Additional Support for Learning) (Scotland) Act 2004 – which postdated this legislation coming into force – changed the definition of “special school” – which effectively changed the scope of this duty.
Section 29(1) of the 2004 Act, defines ‘special school’ as
(a) a school, or
(b) any class or other unit forming part of a public school which is not itself a special school,
the sole or main purpose of which is to provide education specially suited to the additional support needs of children or young persons selected for attendance at the school, class or (as the case may be) unit by reason of those needs.
So a pupil who attends a Language and Communication Unit (for example) which sits within a mainstream school, is not being educated in a mainstream setting or receiving a mainstream education, according to the Act – regardless of how many opportunities for joining in activities with mainstream peers may be offered.
The Act also does not address situations in which there may be a split placement. Is a pupil who attends a mainstream school part-time and a special school part-time being educated in accordance with this statutory requirement, or not?
Finally, the presumption of mainstreaming appears as a ground of refusal in the legislation concerning placing requests (Schedule 2 of the 2004 Act). Ground for refusal 3(1)(g) applies where the ‘specified school’ (i.e. the one requested by the parent) is a special school, if placing the child in the school would “breach the requirement in section 15(1) of the 2000 Act”.
As set out in the recent Upper Tribunal case of Midlothian Council v. PD, this effectively means that, for a parent to be successful in a placing request for a special school, they will have to show that one or more of the exceptions ( a to c, above) applies.
That more or less covers the legislation. Next up … Inclusion and the presumption.
This week is Learning Disability Week 2019! This year, the theme is community. The campaign provides an opportunity to celebrate the contribution of people with learning disabilities to their communities while also raising awareness of some of the barriers they can face in doing so.
As the Scottish Commission for Learning Disability highlight:
Communities are at their best when everyone is active…connected…and feels included.
At their best communities – including learning communities – provide something for everyone to benefit from, boosting wellbeing, preventing loneliness and isolation, and improving outcomes.
Inclusion is the overarching approach adopted in schools in Scotland – with the presumption of mainstreaming central to that policy. Although this policy has many detractors if a recent study is to be believed, when it works, this inclusive ethos enables children with learning disabilities to play an active part in their school communities. The Additional support for learning: experiences of pupils and those that support them report found that most pupils with additional support needs at mainstream schools felt they had lots of friends, that it was easy to make friends, and that they were included in the life of the school.
By educating pupils who have learning disabilities and those who do not side by side, friendships and support networks can blossom between children who may not have crossed paths in previous generations.
There is still, however, work to be done. Keys to Life is Scotland’s learning disability strategy. It recognises learning as one of the strategic priorities, and highlights the following:
- Teachers have a pivotal role in securing positive experiences for people with learning disabilities.
- Many teachers don’t have the skills and resources they need to support pupils with learning disabilities.
- Testing and attainment structures do not reflect the potential of children with learning disabilities and how they can succeed.
- Transition periods are particularly challenging for people with learning disabilities.
- There are a lack of appropriate choices for people with learning disabilities at school and college.
The rights that pupils with learning disabilities have under both the Education (Additional Support for Learning) (Scotland) Act 2004 and the Equality Act 2010 should assist in tackling some of these issues, but that does rely on an increased awareness of those rights among educators, parents and pupils.
A school is at the heart of its community, and by adopting an inclusive ethos, properly supported, they can be instrumental in building a genuinely inclusive school experience for all pupils.
Full Disclosure: I am a board member of the Scottish Commission for Learning Disability.
In this, my second blog post to mark Deaf Awareness Week 2019, I wanted to look at the rights of deaf pupils at school. What are those rights, and how does that translate into actual support for deaf pupils in reality?
A child or young person has additional support needs if they require additional support in order to benefit from school education (Section 1, Education (Additional Support for Learning) (Scotland) Act 2004). This applies to all children and young people for whose school education a Scottish education authority are responsible. So, anyone at a local authority school or nursery, or placed at an independent or grant-aided special school by their local authority.
The type of additional support which may be required will vary from one deaf pupil to another, but the education authority has a duty to make “adequate and efficient” provision for those needs, whatever they happen to be (Section 4(1)(a) of the 2004 Act). The Code of Practice, for example, makes specific reference to support from a “peripatetic teacher of the deaf” (Chapter 2, para 13).
Also of relevance is the Equality Act 2010, which imposes a reasonable adjustment duty on schools in relation to disabled pupils – including deaf pupils. This duty applies to all schools in Scotland, whether they are public schools, grant-aided schools or independent schools. Again, what constitutes a reasonable adjustment for one deaf pupil will not necessarily mean that it is appropriate for another. It all depends on the individual child or young person, their needs and their preferences.
The Technical Guidance for Schools in Scotland does have some useful and instructive examples. At para 6.40, there is an example of a deaf pupil who reads lips – in that case “a reasonable adjustment would have been to train all staff to ensure that they face the pupil when speaking to him”. At 6.48, a list of potential reasonable adjustments includes “Assistance from a sign language interpreter, lip-speaker or deaf-blind communicator”.
Whether relying on the rights found in the 2004 Act or the 2010 Act, deaf pupils and their families have access to various dispute resolution mechanisms, including mediation, independent adjudication and the Health and Education Chamber of the First-tier Tribunal for Scotland (also known as the Additional Support Needs Tribunal).
I spoke to Alasdair O’Hara, Head of Policy and Influencing at the National Deaf Children’s Society (Scotland) , in order to get an idea of the current picture of support for deaf pupils in Scotland’s schools:
Deafness isn’t a learning disability and we know that deaf children can do just as well in life as any other child, so long as they get the right support.
Deafness is a low incidence need with 87% of deaf children and young people educated within mainstream schools, meaning those professionals and teachers that support deaf pupils often require access to specialist expertise such as Teachers of the Deaf.
The latest Scottish Government data shows that deaf young people are now 30% less likely to collect Highers or Advanced Highers than their hearing classmates, with only 42% deaf young people collecting the qualifications, compared to 60% of their classmates.
The data also shows that 10% of deaf children will now leave school with no qualifications at all, and are half as likely to go to university as their hearing friends.
To work towards closing this unacceptable attainment gap, other simple improvements can be made in mainstream education settings. Good classroom acoustics, deaf pupils having access to technology and ensuring teachers are deaf aware and know how to use the technology correctly are all vital in supporting a deaf child’s learning.
This tells me that while there is a good level of inclusion for deaf pupils within mainstream schools, more could still be done to ensure that there is a level playing field, allowing them to access education on the same terms as their hearing peers. Last year, the Tribunal reported only one case which concerned a deaf pupil. Where additional support and/or reasonable adjustments required are not in place, pupils and parents alike should be made aware of their rights – and how to enforce them.
Our collective judgement is that the Education (Scotland) (Additional Support for Learning) Act 2004 (as amended) is sound and fit for purpose. We are proud that Scotland has such progressive legislation in place.
So said the Scottish Government’s Advisory Group on Additional Support for Learning (AGASL) in January this year. At the same time, they recognised the need for a review of its implementation in practice.
Not long after that, a motion was debated and passed by the Scottish Parliament to undertake a review of the presumption to mainstream, and how it is working in practice. It is unclear when this review will take place, or indeed how long it will take, but in a letter to John Swinney, Secretary for Education and Skills, on 9th April 2019 the Education and Skills Committee gave a clear view that mainstreaming in practice needs support. While endorsing the view of AGASL, the Committee outlined their recommendations for the review, based on research carried out over December 2018 through February and March this year. This involved a call for views, a focus group with parents, young people, school staff and others and meetings with other relevant stakeholders, with the Committee aiming to see how the experiences and perspectives of these groups had evolved since the publication of “How is Additional Support for Learning working in practice?” in 2017.
Disappointingly, the Committee found the issues raised by parents and teachers who submitted to the last inquiry remain relevant today. The Committee called for the 2017 recommendations to be considered in any future review and were conscious that: “the policy to include is having the opposite effect in some circumstances due to a lack of resources”. The issues raised for consideration by the Minister will not be news to regular readers, and included:
- The Scottish Government should consider ways of improving data gathering on individual school’s approaches to issues such as seclusion, restraint, part-time timetabling, unlawful exclusions, and home-schooling as a last resort.
- A need for increased awareness raising amongst and support for parents.
- For a meaningful assessment of trends in staffing levels, it is vital to have statistics that reflect the number of support staff with a specialism in supporting those with additional support needs. Work to standardise the nomenclature used by local authorities is a starting point.
- A need for a financial review to be undertaken by Scottish Government to ascertain the extent to which education authorities are spending in line with the level of need in their area, and identify authorities who have lower spends.
- The issues with the implementation of CSPs and the associated impact should be the focus of a stand-alone piece of work.
There was also a suggestion that the definition of what constitutes additional support need has become so broad that its impact has been diluted. This may be contributing to an inconsistency in provision. For instance, children who have English as an Additional Language are included within the definition. While there was no recommendation associated with this, the Scottish Government were asked to provide their perspective.
The Committee has asked John Swinney to respond to their proposals by 15th May 2019, and I await that response with interest.
Photo Credit: DFM gets to work on education, Scottish Government – released under a Creative Commons Attribution-NonCommercial 2.0 Generic (CC BY-NC 2.0) licence
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.