This case was an appeal to the Court of Appeal against a decision of the High Court, rejecting a human rights challenge brought against a change in the SEN transport to school policy of the local authority. The case was Drexler v. Leicestershire County Council  EWCA Civ 502 and while the appeal was unsuccessful and concerning provisions in English law, it has some useful and interesting points for us to consider.
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 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.
Last week the Scottish Government published revised guidance on school attendance.
The guidance is called Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools. As the name suggests, there is an immediate link being made here with school exclusion – Part 2 of the “Included, Engaged and Involved” is the exclusions guidance (which is, by and large, very good). Anyone who has read the Not Included, Not Engaged, Not Involved research will know the very real overlaps between non-attendance at school and informal exclusions from school for disabled pupils / pupils with additional support needs.
I come across issues of attendance and non-attendance in my capacity as a solicitor and also as a member of a local attendance council for a Scottish local authority. More often in the first capacity, the situation is that a child with additional support needs is “not coping” with school and this is manifesting itself in behaviour which makes it not safe for them to attend, or in a refusal to attend school – often expressed in very definite terms.
Note already the terminology used – it is the child who is not coping, rather than the school environment (say) or teacher practice (for example) which requires amendment.
Pupils with additional support needs have a lower rate of attendance than pupils with no additional support needs, with the difference being particularly stark in mainstream secondary schools (88.6% compared to 92.1%) 2017 stats. Given this known disparity, it is disappointing that the section on Additional Support for Learning occupies half of one page (in a fifty page document). There are four paragraphs, three of which explain what additional support needs means as a term and a little bit about Co-ordinated Support Plans.
The other paragraph, however, does sort of get to the heart of matters (in all fairness):
Providing additional support may help children and young people to engage more fully with school and promote good attendance. 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.
My concern is that this gets lost in a document which has much more to say about the traditional means of responding to absence: work being sent home; attendance orders; references to the children’s panel; and prosecution of the parents of the absent child (five pages devoted to the “Measures for compulsory compliance” appendix!). None of which is helpful or effective in relation to a child whose autism means that they are unable to function effectively (let alone learn) in the busy environment of a large mainstream school. These systems were set up decades ago to deal with truancy and are ill-suited to other purposes. Further, once you are in the enforcement process, it is difficult to get out.
Fortunately, the Tribunals – and the Court of Session, in the 2018 Inner House case of City of Edinburgh Council v. R, may take a more considered view of this type of case. The case deals with some fairly technical matters under the Equality Act 2010, but ultimately has no difficulty with the Tribunal’s finding that a CSP for a disabled child refusing to attend school (for reasons arising from that disability) which basically says the school can do nothing until the child attends school – was inadequate, detrimental and discriminatory.
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.
As schools return, remember that it may not be too late to apply for a school clothing grant from the local authority. School uniform can be expensive and the Scottish Government have recently provided additional funding to ensure that the minimum grant available is £100. Different authorities have different eligibility criteria, however, and the deadlines and application processes vary, too.
I have therefore put together a spreadsheet which summarises the position in each of the 32 local authorities in Scotland for this school year (2018/19). This is based on my understanding of what the websites say, so you are best to check locally, but this should be a helpful pointer.
Remember that there may also be other supports available, such as school uniform banks or back to school banks, which are becoming more widespread.
Image Credit: lucuzade – https://en.wikipedia.org/wiki/File:Richmond_School_Tie.jpg
On 10th January 2018, amendments to the Education (Additional Support for Learning) (Scotland) Act 2004 came into force, heralding an extension of rights for Scottish teenagers, said to be unprecedented anywhere in Europe. Pupils aged between 12 and 15 now have the right to ask their school or local authority if they need extra educational support, and the right to have a say in how that is provided, advocacy to support them in expressing their views and legal representation at Tribunal should they need it.
To raise awareness and support children through this process providing advice, advocacy and legal representation, a new children’s service called ‘My Rights, My Say’ has been established. Delivery of this service will be through a partnership of Children in Scotland, Enquire, Partners in Advocacy and Cairn Legal.
This a significant development, and one which has been welcomed across the Scottish education community. Concern has been raised, however, as to how this is to be funded. With statistics published by the Scottish Government at the end of last year showing a 55% increase in pupils with additional support needs since 2012 coupled with a perceived downwards trend in investment, that concern is not surprising.
At the same time, the Scottish education system is going through a period of reform, with schools and Head Teachers to be given more freedom to make decisions at a local level. The Education (Scotland) Bill will make Head Teachers responsible for recruitment of school staff, and other budgetary decisions and deciding on curriculum content. While Councils will still have a role in education (including legal responsibility for additional support needs), newly established Regional Improvement Collaboratives will be created to ‘pool and strengthen resources to support learning and teaching in schools’.
In theory, this will provide an opportunity for schools to tailor additional support, but there is also a risk that the system becomes disjointed, and unable to respond effectively to competing demands on resources.
The current draft budget is being debated in parliament, and the question of additional support for learning funding seems to be an issue that is attracting some interest amongst MSPs. The budget contains an allocation of £10m to be provided to charities that support young people with additional support needs; is also includes £120m allocated to pupil equity funding to help raise attainment. However, the Education and Skills Committee are putting pressure on the Government to ring-fence all additional support needs funding for local authorities.
Ringfencing of additional support needs funding allows Scottish Government to control the sums spent on this area. However, it does not guarantee that the sum ring-fenced will be sufficient to meet all of the needs within one area, nor does it control how or on what that money is spent. Further it is not always easy to identify what funding is for additional support. Much additional support is provided by the class teacher – how is this reflected in any ring-fencing? Do you take a proportion of the teacher’s salary?
Whatever form the revised governance arrangements for Scottish education finally take, the issues of responsibility for additional support needs, and of funding for additional support will remain – like a fiendish Sudoku puzzle – full of numbers and difficult to solve.
Photo Credit: https://www.flickr.com/photos/01-17-05_t-m-b/2156513671
As you may have read elsewhere, the Humanist Society of Scotland are bringing a judicial review against the Scottish Government’s decision not to review the law in relation to religious observance in schools. At present, the law affords an opt-out for parents, but not for children.
- Humanist Society Press Release
- Humanist Society Briefing
- Scottish Government letter, which is the subject of the challenge
Following on from recommendations from the UN Committee on the Rights of the Child at the last UK “inspection”, the Humanist Society called upon the Scottish Government to review the law to allow older children to take their own decision. The Scottish Government have refused, stating:
“There is no equivalent statutory right to withdraw afforded to children and young people. However many schools will find it helpful and sensible to include young people in any discussions about opting out, ensuring their wishes are aired.”
My own views on this are already on record elsewhere, and have been for some time:
“The right to withdraw from religious instruction or observance is given to the parent of a pupil, rather than to the pupil themselves. In light of more recent legislation, including the Human Rights Act 1998 (cf. art.9: freedom of thought, conscience and religion) and the Equality Act 2010, schools should also have regard to the views of the child in relation to such matters.”
And what does the law actually say? It can be found in three main places, which is not always appreciated. As always the legislation is written as if all children have only one parent (or two who always agree on everything) – there is no rule for what happens if parents disagree about religious observance!
First, Section 9 of the Education (Scotland) Act 1980 sets out the basic rule, under the section heading “Conscience clause”, which is to the effect that the parent of a pupil at a public school has the right to withdraw them from “any instruction in religious subjects” and “any religious observance” in any public school or grant-aided school. Interestingly, the term “pupil” is used here, rather than child – so the right remains with parents in relation to pupils even after they have turned 16. Remember also that this is a right to withdraw, not a right to ensure participation. Arguably – and this may indeed be what the Scottish Government end up arguing – a child or young person who wishes to withdraw from religious observance could insist on other rights (the Human Rights Act 1998 or Scotland Act 1998 in terms of their Article 9 rights) to achieve that result. There is nothing in this preventing the school from granting such a request.
The children’s rights issue arising from Section 9 would be where a pupil wishes to participate in religious observance – and is prevented from doing so by reason of a parent’s withdrawal request. An interesting cause for the Humanist Society to be taking up!
Section 10 of the Education (Scotland) Act 1980 (“Safeguards for religious beliefs”) applies to pupils who board at a residential school (or at a hostel for educational purposes). This affords parents the right to insist on the child being permitted to attend worship, receive religious instruction and participate in religious observance in accordance with the tenets of their parents’ religion. There is no equivalent to this for the child, but again the duty on the school is to permit the child to do these things (outside school hours and not incurring unreasonable costs) – there is no requirement to compel the pupil to take part. Nor is there anything preventing the school from allowing the pupil to participate in worship in relation to their own religious beliefs (if they differ from those of their parents).
Finally, Regulation 12(3) of the Schools (General) Regulations 1975 applies to pupils at a special school (includes a special unit within a mainstream school). This ensures that no education authority may compel a pupil to attend religious observance or receive religious instruction against the wishes of their parents. Further, it requires the authority to give the parent an opportunity to express their wishes – a requirement not present in the other sections. Again, the children’s rights issue which may arise is that of a child who wishes to attend religious observance – although this could be permitted, so long as it is not compelled!
The law is no doubt in need of revision – even the terminology barely fits modern educational practice – particularly in non-denominational schools. However, the Scottish Government’s position is that the law does comply with pupils’ Convention Rights (when read with the guidance and Curriculum for Excellence). Given the nature of the duties set out above, this may just be correct – although there may be a question mark over how well schools understand this. If there is an area where the law may breach a pupil’s Convention rights it is for the child who wishes to attend religious observance, but is prevented from doing so because of their parent’s decision to withdraw them.
An interesting development. Today’s Herald carries an article on the Glasgow Steiner School seeking direct state funding, following the fire which effectively closed the school back in 2013. (“Steiner school hit by blaze in landmark bid for state funding”, 20 June 2016)
As the article points out, this is the latest group to seek direct Scottish Government funding for their school, following in the well documented footsteps of St. Joseph’s Primary School in Milngavie.
The Scottish Government already have all of the powers they need to grant the Steiner School’s request. Section 73 of the Education (Scotland) Act 1980 allows the Scottish Ministers, by regulation, to pay grants to the managers of any educational establishment, and to “any other persons” for providing education or educational services. Section 74(1) allow conditions to be imposed on such grant payments. This is how Jordanhill School is funded.
No primary legislation would be required. It would be a politically huge step to take, no doubt. Especially in the case of the Steiner School which, as I understand it, runs a different curriculum (i.e. not Curriculum for Excellence).
From a legal perspective, there are two points to consider here.
The first is that both St. Joseph’s and the Glasgow Steiner School are making, essentially the same argument that St. Mary’s Episcopal Primary School made in the case of Dove v. Scottish Ministers back in 2001/02.
The argument is essentially this – the Scottish Ministers directly fund Jordanhill School as a mainstream “grant-aided” school; so why not us? Jordanhill is an anomoly within the system, and maybe some day it will be altered – but until then it can be explained away as a historical curiosity, unique circumstances etc.
Funding other schools directly definitely would open the floodgates, the “why not us?” case becoming more and more difficult to answer each time an exception is made. Maybe the Scottish Government are keen to have more autonomous grant-aided schools but, if so, it should surely be on the basis of a national policy and one which is accessible to all schools who might choose to opt in, not just those which the best PR skills.
From that point of view, and even if this were being done on a “pilot” basis, the proposals have very different implications. Fund the Steiner school, and the Scottish Government is allowing parents at an independent school to depart from Curriculum for Excellence, and funding them to do so. Fund St. Joseph’s in Milngavie, and what does that do to East Dunbartonshire Council’s primary school estate planning?
Secondly, in the background, the Scottish Government is still working through the implementation of the Doran Review recommendations – part of which may have a major implication for the seven special schools in Scotland which currently receive direct grant funding from Scottish Government.
Introducing new mechanisms for direct grant funding from Scottish Government in the middle of that process would be complicated to say the least. It would be problematic to try and insist that any new system could only apply to mainstream schools. And, if the Scottish Government were open to encouraging parent controlled schools which may take different approaches to education, then projects like the Stoa School in Edinburgh may well be very interested indeed.
While superficially attractive, moves to direct funding of schools by Scottish Government would create more problems than it solves. Without major structural (and legislative) changes to the way in which education is managed and delivered in Scotland, it is basically a non-starter.
Photo of Rudolf Steiner, 1905 (public domain) https://en.wikipedia.org/wiki/Waldorf_education#/media/File:Steiner_um_1905.jpg
Big news in education law as Jon Platt, a father from the Isle of White, was cleared of a criminal offence in terms of Section 444(1) of the Education Act 1996. Having been acquitted by a Magistrate following a seven day absence for a family holiday to Florida, the High Court agreed that the court was entitled to look at the overall record of attendance in determining whether a child had failed to attend school regularly.
Is this decision of relevance to education authorities in Scotland? In a word, yes. The legislation is worded in similar terms. An offence arises in England or Wales where a pupil “fails to attend regularly at the school” – though a defence of “reasonable justification” may arise in some circumstances. In terms of Section 35(1) of the Education (Scotland) Act 1980, the offence occurs where a child of school age “fails without reasonable excuse to attend regularly at the said school”.
Scottish Office guidance on school attendance was formerly that up to two weeks of family holiday could be regarded as an authorised absence, where attendance was otherwise good. However, in 2007 the Scottish Government published Included, Engaged and Involved Part 1: Attendance in Scottish Schools, which took a distinctly harder line.
3.6 Family holidays during term time
Following consultation with headteachers, it has been clarified that family holidays should not be recorded as authorised absence, except in exceptional domestic circumstances, where a family needs time together to recover from distress, or where a parent’s employment is of a nature where school-holiday leave cannot be accommodated ( e.g. armed services or emergency services). It is for local authorities and schools to judge when these circumstances apply and authorise absence, accordingly.
The categorisation of most term-time holidays as unauthorised absence has been a contentious issue for some families, many of whom are concerned at the higher cost of holidays during school holiday periods. The Scottish Government has no control over the pricing decisions of holiday companies or flight operators. Our main focus is to encourage parents and pupils to recognise the value of learning and the pitfalls of disrupting learning for the pupil, the rest of the class and the teacher. It is for schools and education authorities to judge what sanctions, if any, they may wish to apply to unauthorised absence due to holidays.
Note that this change to the guidance, which effectively seeks to alter who can be prosecuted for a criminal offence was done without any alteration to the law. Similar changes were attempted in a similar way south of the border, and now it seems that these efforts have been undone by the courts in dramatic fashion.
Despite differences in the systems, in my view, it is very likely that courts in Scotland would adopt a similar approach to the interpretation of the phrase “attend regularly” – although it should be noted (anecdotally) that the Scottish Courts already take a more lenient approach to sentencing in such cases than the English Courts which have jailed at least one parent for her child’s non-attendance.
It is all but certain that solicitors representing parents being prosecuted in Scotland will be making this argument in appropriate cases from now on. At the time of writing, the Scottish Government have not responded formally to the judgement, but the Department of Education in Whitehall are already talking about changes to the law. At the very least, north of the border, education authorities may wish to consider carefully which cases are brought before the courts in future.
The author, Iain Nisbet, is a member of the Attendance Council for his local area.