The Scottish Government guidance we have been looking at is called “Guidance on the presumption to provide education in a mainstream setting“, and yet it is only now – on page 13 of the document – that we reach consideration of the sometimes thorny issue of deciding on the right provision for a child or young person.
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.
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.
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.
Today marks the start of Deaf Awareness Week – a week aimed at promoting the positive aspects of deafness and the benefits of social inclusion. Organised by the UK Council on Deafness, this annual campaign brings together all organisations that work in the field and highlights the wide range of support available for deaf people and their families and friends.
This year’s theme is ‘celebrating role models’ across all sectors – with a different focus each day. Today is the turn of ‘Education and Employment’, so it seemed apt that I take the opportunity to recognise those that have, and continue to, inspire and educate me.
As many of you will know my work often sees me advocating for the rights of children with additional support needs, including those who are deaf. Deaf children have the right to additional support to enable them to benefit from school education. They are also entitled to reasonable adjustments which minimize or remove disadvantages arising from their disability while at school. But these rights mean little without individuals committed to making them a reality.
I have recently had an opportunity to work alongside the staff and management at Donaldson’s School – and have heard from parents about the excellent work they do with Deaf pupils who have autism or other additional support needs as well.
I also continue to work with the tireless family support workers at NDCS Scotland, who provide a national support service to families of deaf children throughout the country. Their commitment, knowledge and dedication is much appreciated by the families I know who have benefited from their input.
And, of course, there are teachers in classrooms across Scotland, implementing small (and not so small) changes which positively impact the lives of deaf children, and those with other additional support needs.
Who are your education role models?
I came across this article in TES recently which reported that a group of parents in Surrey had been unsuccessful in their challenge to cuts made to the Special Educational Needs (SEN) budget of their local authority. The challenge was brought by the parents of 5 children who claimed that the SEN budget for 2018-2019 cut spending by £21 million and was unlawful due to a lack of consultation. This type of challenge – by way of Judicial Review –is not an isolated one, although it is much less common north of the border. And, despite the outcome in this case, can be successful.
Indeed, the case of KE & Ors, R (On the application of) v Bristol City Council  EWHC 2103 (Admin) – raised earlier in 2018 – was successful in quashing the budget decision and sending it back to the Council for reconsideration. The focus of the case was slightly narrower – the parents challenged the Council’s decision to set a school’s budget as it included a reduction in expenditure of £5 million pounds in the “high needs” block budget. This is the budget used for special needs provision.
The grounds for review in that case were multiple, but of particular interest is the challenge made with reference to the Equality Act 2010. More specifically, that the decision breached the public sector equality duty (PSED) which contains a duty to acquire further information – including through consultation.
For its part, the Council argued that the Judicial Review was premature as no decision had been taken on provision proposals which were to be developed within the funding envelope. The Judge, however, held that the decision was indeed one that could be challenged. The cut was to funding in a very specific area within the Local Authority’s education budget. It was sufficiently focused even at this stage.
Having concluded that the challenge was a relevant one he went on to hold that there had been a failure to consult in terms of the PSED. Further, the Court noted that ‘participation in public life embraces participation in a mainstream educational environment and such participation for children with disabilities is disproportionately low’. Factors such as levels of exclusions and the high numbers of children in special schools were factors that cried out for consideration by the Local Authority and had not been.
Surrey County Council used the same defence as put forward by Bristol City Council. The parents were, however, challenging proposed cuts made across the authority and not to a particular school – or provision. In rejecting their claim, Lady Justice Sharp said that the evidence in the case showed that the decision being challenged was not, in fact, a ‘cut’ to the budget. Rather the authority had identified a potential for future savings: “The Council could not know what the impact of the cuts might be in those areas, or consult on them, because at the time the decision under challenge was taken, no cuts have been decided upon or worked out.”
With the Public Sector Equality Duty applying to local authorities in Scotland too, local government across the UK should take note. These cases confirm that the PSED applies to budget decisions and embraces participation in a mainstream environment.
Information gathering and consultation during the budget setting process goes some way to assist that and is a requirement on decision-makers to ensure that mainstreaming is happening. The Bristol case makes mention of statistics relating to the high numbers of children in special schools in the local authority area, and the numbers of exclusions. A properly conducted Equality Impact Assessment may also be of relevance.
By actively considering how successfully inclusion is working within a local authority area, and what needs to be done if it is not, budget decisions will better reflect and focus on children with additional support needs and disabilities. It may be some time before we see similar cases in Scotland (and funding of such cases is always a thorny issue) but the reminder of the application of the public sector equality duty to changes in the additional support or education budget is certainly timely.
Photo Credit: John Stavely at https://www.flickr.com/photos/8759111@N02/3320291932
Creative Commons license: https://creativecommons.org/licenses/by-sa/2.0/
On Wednesday 30th January 2019, the Scottish Parliament agreed the following motion (S5M-15607):
That the Parliament notes the comments made by the OECD that inclusion is one of the key strengths of the Scottish education system; believes that the presumption to mainstream pupils has laudable intentions and that it works well for the majority of young people in Scotland’s schools; recognises however the very considerable concern that has been expressed by many teachers, teaching assistants, children’s charities and parents’ groups that a growing number of young people with special educational needs are not being well served by being placed in inclusive mainstream education; believes that this is putting additional pressures on teachers and young people in classrooms across Scotland, making it more difficult to support the individual needs of each child; in light of the recent evidence presented to Parliament, calls on the Scottish Government to work with local government partners to review the presumption to mainstream policy to ensure there can be more effective uptake of the provision of places in special schools and specialist units and utilisation of specialist staff, and, agrees that this review should be founded on a continuing commitment to a presumption to mainstream and on the need to ensure that children and young people’s additional support needs are met, to enable them to reach their full potential, from within whichever learning provision best suits their learning needs, and notes the forthcoming publication of revised guidance, tools and advice for school staff, and national research, on the experiences of children and young people with additional support needs.
The motion was brought by Liz Smith MSP (Conservative) with the section from “and agrees that this review..” to the end, being added by an amendment brought by John Swinney MSP (SNP), the Cabinet Secretary for Education.
It is significant that the motion carried cross-party support, with very little disagreement except on minor points of emphasis. While the motion itself speaks about a review of the presumption of mainstreaming, the Cabinet Secretary seemed to go further than that, referencing “a review of the implementation of additional support for learning, including where children learn”.
It is worth mentioning the solid work that the Education and Skills Committee have put into grappling with this question over a significant period. In addition, several voluntary organisations have worked effectively to keep the issue in the spotlight.
I have some slight concerns as to the length of time that a review might take, as it is not clear what form this is going to take, or over what timescale.
Indeed, as Mark McDonald MSP pointed out during the debate, the last call for a review into the presumption of mainstreaming was some three years ago. That review has not yet concluded! Draft revised guidance on the presumption of mainstreaming was out for consultation about a year ago. (You can read my response to the consultation on the presumption of mainstreaming guidance here.) The Scottish Government website still claims that updated guidance “will be published towards the end of 2018”.
It is to be hoped that the substantial work which has already been undertaken here means that the review process will not be a lengthy one.
As the motion is keen to point out, there is no intention here to depart from the principle of the presumption of mainstreaming, rather to consider how it is being implemented in practice. In my view this is the correct approach. It has always been accepted that mainstreaming would be more expensive than a system of special schools (cf. “Moving to Mainstream” report by Audit Scotland, 2003) – but it has been adopted as a principle because it is the right thing to do. The policy must be properly resourced as a matter of urgency. It is not a quick fix, but a long-term commitment which is required. The resources must also be spent on the right things. For example, simply throwing Pupil Support Assistants at the problem will not help, and may make things worse.
The motion also mentions the “more effective uptake of the provision of places in special schools and specialist units”. The Doran Review was commissioned by the Scottish Government and published in November 2012. In the six years which have passed since then little progress has been made in terms of the recommendations it made certainly insofar as they related to Scotland’s grant-aided special schools. A draft ten year strategy on the learning provision for children and young people with complex additional support needs was published in June 2017. My response to that consultation can be found here. The strategy has not yet been finalised, much less implemented (and it was supposed to cover the period 2017-2026). Meanwhile, the Scottish Government are paying millions of pounds a year to the grant-aided special schools, some of which are woefully under capacity, catering to just a handful of children. These national resources should be fully funded by Scottish Government and able to select their own pupils, just like the only mainstream grant-aided school is (Jordanhill School). This would mean that pupils would be accepted to these schools on the basis of need, rather than by who manages to negotiate the local authority / Tribunal system the best – a process that inevitably benefits children of more affluent parents. There should also be much more emphasis on outreach services to mainstream schools from these national centres of excellence, but this does not currently happen to any great extent. I advanced these arguments in my consultation response, but I am not holding my breath.
We also need to be careful that the review is not hijacked by those who oppose the principle of mainstreaming altogether. Some of the language used in the Scotsman coverage for example, is less than helpful – “extra burden on overstretched teachers”; “some ASN pupils could be disruptive”; “a daily struggle to control classes”.
Overall, the review offers an opportunity to press for a system which delivers the right support in the right place at the right time for pupils with additional support needs – we should take it, with enthusiasm and energy.