Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021

You may remember back in April last year, when the Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 came into force, the Scottish Government indicated that the changes were intended to be temporary and should be reversed by March 2021.

Well, it is now March 2021, and (as of 27 February 2021) the changes have been at least partially reversed, with the coming into force of the Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021. Let’s recap:

  • 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) was extended from 30 April to 31 May. It has now been revised to a mid-way point of 15 May. This is effectively the deadline for decisions in such placing requests for this year.
  • 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 was extended to 3 months following the receipt of the placing request by the education authority. This has been restored to the original 2 months period.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within a certain period 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 period was increased from 2 months to 4 months, and has now been revised to 3 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within a certain period 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 period was increased from 14 days to 28 days, and has now been returned to 14 days.
  • An appeal committee must now acknowledge receipt of an appeal reference within 5 working days once more (this had been increased to 28 days).
  • A hearing of the appeal must be held by the appeal committee as soon as reasonable practicable within the period of 2 months following receipt of the reference (this had been increased from 28 days to 3 months). 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 not later than 14 days after receipt of the reference (changed from 14 days to “as soon as reasonably practicable” previously).
  • 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”. This provision remains in place – which is a very good thing.
  • 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. This provision remains in place – which is a very good thing.
  • Education appeal committees now, as before, have 14 days to notify parties of their decision, and the reasons for it (it was changed to 28 days).

The regulations don’t include any transitional provisions, it’s not easy to be 100% certain, but to the best of my understanding, the new time limits etc. take effect as of now, even in the case of placing requests or appeal processes which are already under way. The regs don’t explain what happens to cases that are, for example, 2.5 months after a request when the deeming provisions change!  My best guess is that it’s deemed on the date of the change (i.e. 27 Feb 2021) in those circumstances.

For the sake of completeness, reg 5 also amends the Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2020 to clarify that certain requirements re: oily fish, deep fried food, chips and pastry products apply separately to evening meals for secondary pupils in education authority hostels.

Image by Rudy and Peter Skitterians from Pixabay

Educational Continuity (No. 9) Direction

At one minute past midnight this morning, the latest educational continuity direction came into force. It will remain in force (unless revoked) until one minute to midnight on 12 March 2021. It may well be formally reviewed at some point prior to that.

As before, the main substance of the direction remains the same (most schools are mostly closed for most pupils), so I will just concentrate on the differences. This time round, the big difference is the provision of in school education for P1-P3 and (on a more restricted basis) S4-S6.

  • having made it clear in the previous direction that education authorities are not required to make provision of remote learning or of education and childcare to those who qualify, outwith normal term time, a further clarification is made here that this is not required on in-service days either;
  • the direction introduces a further exception allowing schools to be used for the facilitation of a Covid-19 testing programme;
  • the direction requires education authority nursery schools and nursery classes to reopen as of 22 February, and for P1 to P3 pupils to return to education authority schools on that same date;
  • in exceptional circumstances, older primary pupils will be permitted to return, where they are in a composite with children in the P1-P3 age range, and there is no reasonable alternative (this might occur with very small schools, I think);
  • for pupils who are in S4-S6, attendance at school is permitted, where necessary for the completion of practical work required for national qualifications;
  • in the meantime, staff are allowed to access schools in order to plan and prepare for the above partial re-opening of schools;

As before, the legal disregards apply (including additional support needs duties and deadlines), but the guidance remains strong on the limited circumstances in which they apply. “It is therefore the continued expectation that authorities deliver against these duties, to the extent that they are not prevented from doing this because of the Direction.” It even goes so far as to suggest that education authorities “will also wish to take their own legal advice in relation to their duties in light of the Direction.”

Educational Continuity (No. 8) Direction

At one minute past midnight this morning, the latest educational continuity direction came into force. It will remain in force (unless revoked) until one minute to midnight on 17 February 2021. It is likely that it will be formally reviewed at some point next week.

It is more or less a cut-and-paste job from the previous (No. 7) direction, so I will just concentrate on the few differences.

  • the directions makes it clear that education authorities are not required to make provision of remote learning or of education and childcare to those who qualify, during the half-term holidays; and
  • the direction introduces a further exception allowing schools to be used for elections (if alternative arrangements can’t be made).

The bit allowing for schools to be used as polling stations is interesting, given that the direction itself only lasts until mid-February. This suggests to me that either the Scottish Government are expecting a snap election in the next fortnight, or (more likely) this is laying the ground for contingencies in the event that school closures continue until the Scottish Parliament elections, currently scheduled for … May 2021.

Educational Continuity (Nos. 6 & 7) Directions

First of all, apologies for the lack of blogging over the last month or so. A much needed Christmas break has been followed by a hectic start to the year. Thanks for your patience.

So, we are back into a period of educational continuity directions to consider. Educational Continuity (No.6) Direction was issued on 22 December 2020, and took effect as of 28 December 2020. At that point, the plan was for a brief extension to the Christmas holidays followed by a week of remote learning, and the direction would run until 19 January 2021.

Specifically, the direction required education authorities to restrict access to their schools until 18 January 2021. Significant exemptions to this rule were:

  • early learning and childcare, which would run from 28 December 2020;
  • school age education and childcare for the children of key workers and vulnerable children and young people, which would run from 5 January 2021; and
  • remote learning for “pupils who normally attend schools” from 11 to 15 January 2021.

The “in-person provision of education” in schools was to resume from 18 January 2021.

However, the No.6 continuity direction was then revoked and replaced by the No.7 continuity direction as of 9 January 2021. This provided for education authority schools to remain closed, with the following exceptions:

  • early learning and childcare;
  • school age education and childcare for the children of key workers and vulnerable children and young people; and
  • remote learning for pupils from 11 to 29 January 2021 (but see below).

The No.7 direction expires on 1 February 2021, but is likely to be replaced by a very similar (No.8) direction before then. Education authorities are required to plan and prepare for children to resume attendance at schools “at the earliest time it is safe to do so, having regard to any guidance issued by the Scottish Ministers”.

Education authorities are also required to secure the provision of free school meals or “reasonable alternatives” e.g. food / vouchers or cash, for those eligible.

From a legal point of view there is a similar impact on legal duties as in previous directions. Specifically, any failure to comply with a duty or time limit under the following provisions is to be disregarded “to the extent that the failure would be attributable to this Direction”:

  • Section 53(2) of the Education (Scotland) Act 1980 (free school lunches) – but see the alternative measures above;
  • Section 30(1) of the Education (Scotland) Act 1980 (duty for parents to provide education for their children) insofar as the duty is discharged by sending the child to a public (i.e. local authority) school;
  • Section 4(1) of the Education (Additional Support for Learning) (Scotland) Act 2004 (duty to make provision for additional support needs);
  • any time limits imposed by the 2004 Act or its regulations (except for the placing request deadlines – which have been extended in specific regulations); and
  • Section 47(1) of the Children and Young People (Scotland) Act 2014 (duty to provide early learning and childcare) – but see the alternative requirements set out above.

As before, the disregard is limited to failures caused by the direction being in place. As the guidance states:

any failures which cannot be attributed to a Direction would continue to be treated as a failure to comply with that duty.

Educational Continuity (No.7) Direction, 8 January 2021: Guidance note

A further educational continuity direction, coming into force on or before 1 February 2021 is expected soon, and I will update once it has been published.

Potential Energy (Part 4)

Theme 3 of the Support for Learning review is “Maintaining focus, but overcoming fragmentation”.  It is a shorter section, covering only two A4 sheets, but addresses an important issue.  How do we ensure specialist knowledge and experience is available in the system for those who need it, without creating “silos” and giving the impression that additional support for learning is only for specialists?

Continue reading “Potential Energy (Part 4)”

Potential Energy (Part 3)

Following consideration of Theme 1: Vision and visibility, we turn our attention to Theme 2: Mainstreaming and inclusion. This obviously covers a lot of the same ground as the revised “Guidance on the presumption to provide education in a mainstreaming setting” on which I recently completed a ten-part series of blogs. You can read my conclusions on that guidance in Mainstreaming, I presume? (Part 10).

Thankfully, this review reaches many of the same conclusions about mainstreaming, and explicitly adopts many of the key concepts and principles from the guidance:

  • the review confirms that the “physical presence of a child” in a mainstream school alone does not constitute inclusion;
  • it adopts the four principles of inclusion from the guidance – present, participating, supported and achieving; and
  • it underlines the importance of inclusion “in the life of the school” which includes the playground, school trips, sporting events, social events and being “visible as part of the community”.

Continue reading “Potential Energy (Part 3)”

Potential Energy (Part 2)

Continuing our consideration of the ASL Review Report, the main section of the report begins with “Theme 1: Vision and visibility”.  This covers two big issues.  One is that there is no defining national agenda or narrative in relation to additional support needs, demonstrated perhaps by their absence from the National Improvement Framework.  The second is that the term “additional support needs” continues to be misunderstood and misinterpreted, with the result that particular groups of children and young people who are covered by the law missing out on their rights in practice.

Continue reading “Potential Energy (Part 2)”

Recover Version

Education Scotland have issued an update of their Corporate Plan for 2019-2022, to take account of the impact of the recent interruptions to learning caused by school closures etc.

The document is called “Education Scotland: Our Recovery Year 2020/21” which does sound like they are struggling with addiction or something.  To educational jargon perhaps?

It is a relatively short and easy to read document, which recognises that the pandemic has had “huge implications for the education system”. They propose therefore to “lead and support the [education] system during a ‘recovery year’ up to June 2021”.

While noting the changed context, there are some things which remain constant, including the commitment to Education Scotland’s four values (which I had not heard of before): integrity, respect, excellence and creativity. I might quibble over whether “excellence” is really a value, but there we are…

There is clearly some concern that we are not out of the woods yet, and so one of the aims is to “increase the system’s resilience to continue to support learning in the event of any future national or local lockdowns.” and one of the ES outcomes listed is that the “education system is responsive and able to move into / out of lockdown smoothly if / as required.”.

This is most obviously reflected in the commitment to “continue to develop support for remote learning”, with Glow, Scotland Learns and e-Sgoil being name-checked specifically.

To free up capacity, the school inspection programme remains “on hold” though “targeted and risk based inspections” will be carried out as required.

This is a corporate plan document, so it’s fairly high level stuff, and perhaps not wholly surprising to see no mention of the particular impact on pupils with additional support needs – though there is a recognition in the introduction that “the impact of COVID-19 has not been felt equally .. for our different groups of learners”.

Image by Jagrit Parajuli from Pixabay

Mainstreaming, I presume? (Part 10 – Conclusions)

So, we have finally reached the end of the Scottish Government’s guidance on the presumption of mainstreaming.  Having gone through it in that level of detail, I have obviously had the opportunity to form a view on it.

Reading through the previous nine articles, you will see that I have some criticisms and some concerns in relation to individual sections.  However, overall, I would say that this guidance is pretty good.

It is well written and well structured.  It provides a useful working definition of inclusive education, through its use of the “four key features of inclusion”.  It is a practical document, which you can actually see education staff, parents and young people making use of in tackling the issues which arise.  The practitioner questions, in particular, are a really useful approach and identify the right questions without dictating an answer in any individual case.  It also valiantly attempts to move the terminology on from “mainstreaming” to “inclusive education / inclusion” while hampered with legislation which bears the crossheading “Requirement for mainstream education”.

So, as I was asked on the facebook page recently …

What’s your stance on presumption of mainstreaming?

A good question.

One of the points to consider here is how well the Scottish legislation (Section 15 of the Standards in Scotland’s Schools etc. Act 2000) implements Scotland’s international obligations (Article 24 of the UN Convention on the Rights of Persons with Disabilities).

But Section 15 was never an attempt to implement the UNCRPD.  Scotland’s presumption of mainstreaming law (passed by the Scottish Parliament in 2000) predates the UN Convention (came into force on 3 May 2008) by several years.

At that time, as far as I know, the leading international source for inclusive education was the UNESCO Salamanca Statement (from June 1994), with its call for children with special educational needs to have access to “regular schools” with an inclusive orientation”.

It is a measure of the speed at which progress was made that less than 15 years later, there was a UN Convention requiring all States Parties (including the UK) to ensure that “[p]ersons 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;”  And it is therefore perhaps not surprising that legislation which predates that Convention does not fully reflect its requirements.  Time for a legislative review?

One of the big problems which exists here is with the terminology.  A “presumption of mainstreaming” – is almost tailor made to get parents’ backs up.  Why are you taking important decisions about my child on the basis of a presumption?  Look at them as an individual and make a decision that is best for them!

And look at how it is structured.  A duty on the education authority to ensure that children (subject to the three exceptional exceptions) are provided with school education in schools which are not special schools.  The assumption was that the presumption of mainstreaming was something which parents could use to ensure access to “regular schools”.  Too often, it is something which is imposed on parents against their better wishes.  This is compounded where the provision then does not deliver on reassurances made by education personnel (who may not work within the school in question).

What if the legislative language was not about taking children and deciding where to put them – like some kind of low-grade Sorting Hat?  What if, instead of a duty to place children in mainstream schools, the education authority had a duty to make its mainstream schools inclusive for all pupils?  What if, instead of a duty to put children in local schools, there was a duty to make local schools accessible, inclusive and welcoming for children with disabilities or additional support needs?

The Equality Act 2010 and the (oft-forgotten) accessibility strategies go some way to achieving this – but not far enough.  Just this year, I represented a family who could not send their child to the local school for want of an accessible toilet, which the authority refused to install for cost reasons.  Besides, there was an accessible school not too far away and we will pay for a taxi for you.  This is – as the law stands – perfectly legal.

It is not my role to make suggestions about how we could improve things, but if it were, I might suggest the following:

  1. Review and revise the legislation so that it better reflects Scotland’s obligations under the UN Convention on the Rights of Persons with Disabilities.
  2. Strengthen the Accessibility Strategies process so that schools and authorities take it seriously, and they are externally audited (as they used to be).
  3. Schools should give parents at least an indication of the supports available for their child in advance of attendance.  Being told that the child will attend, and then the school will determine the level of support required is not at all reassuring.
  4. If a child is to attend a mainstream school, the right support and financial backing must be given to allow their full participation in all aspects of the school – after school clubs, school trips etc.
  5. Children and young people should be at the centre of and involved in decisions about their own education.
  6. A diversity of provision – including smaller, quieter schools – would be of benefit to a diverse range of learners.  Those with additional support needs and those without.

Thanks for sticking with me over the course of this ten part series, and for those who have provided useful comments and feedback.

Mainstreaming, I presume? (Part 9)

And so, we finally get to the core of the guidance, which is the duty itself and – almost as importantly – the three exceptions to that duty.  As the guidance notes: “If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person’s wellbeing, in order to reach a conclusion on the application of the three exceptions..”

Continue reading “Mainstreaming, I presume? (Part 9)”