Educational Continuity (No. 10) Direction

This latest of the educational continuity directions is significantly different from those which have recently preceded it, and so I will cover it in more detail than the last couple. This one runs from one minute past midnight on Saturday 13 March 2021 until one minute to midnight on Good Friday (2 April 2021) – i.e. from now ’til the Easter holidays.

As always, the Scottish Ministers, before issuing the direction, have consulted with the Chief Medical Officer and are satisfied that it is “necessary and proportionate” for the continued provision of education. The direction applies only to education authority provision, but in practice directions have been followed pretty closely by the independent sector as well.

The direction requires education authorities to:

  • plan and prepare for all pupils to return to school full-time “at the earliest time it is safe to do so”;
  • provide school education (during term time) to all primary age pupils in their schools;
  • provide school education (during term time) to all secondary age pupils in their schools – subject to local arrangements and Scottish Government guidance – in particular: children of key workers; S4-S6 pupils studying for a national qualification; and as much provision for other pupils (S1-S3) “as reasonably practicable”;
  • continue providing remote learning (during term time) for secondary age pupils as necessary to ensure that they receive “adequate and efficient school education” – including any school attendance they get; and
  • provide reasonable alternatives where free school meals cannot be provided to those pupils eligible for them.

Education authorities are still, however, required to restrict access to all schools (except nursery schools) other than where access is required for any of the above purposes, or:

  • for permitted use of outdoors sports activities;
  • for the facilitation of a Covid-19 testing programme;
  • for the maintenance of buildings and facilities;
  • for any aspect of the local authority’s response to coronavirus;
  • in relation to Scottish Parliament, local government or UK Parliament elections (if reasonable alternative arrangements cannot be made).

As before, any failure to comply with certain legal duties can be disregarded where the failure is a result of the direction. The duties covered by this rule are:

  • the duty to provide free school lunches (Section 53(2) of the Education (Scotland) Act 1980);
  • the duty on parents to provide education (Section 30(1) of the Education (Scotland) Act 1980);
  • the duty to make adequate and efficient provision for the additional support needs of children and young persons with such needs (Section 4(1) of the Education (Additional Support for Learning) (Scotland) Act 2004); and
  • duties and time limits under the Education (Additional Support for Learning) (Scotland) Act 2004 – other than those relating to placing requests, which are covered in other amendments to those specific regulations.

Finally, in putting all of this into practice, the education authority must have regard to:

  • the objective of preventing the transmission of coronavirus;
  • the welfare of children and young people and staff;
  • the importance of continuity of education; and
  • relevant guidance issued by the Scottish Ministers.

As stated above, this direction will take us up to the Easter holidays. A further direction will presumably be issued thereafter which, all being well, should be less restrictive than this one.

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.

Educational Continuity (Nos. 4 & 5) Directions

Due to being away on annual leave last week, I didn’t get a chance to blog on the last Educational Continuity Direction, which was the fourth issued by the Scottish Government.  It was not hugely exciting in that it mainly continued the previous directions, with some additional bits and bobs about preparing for schools re-opening on 11 August.  It also effectively brought to an end the provision of childcare for keyworker and vulnerable children, as of 31 July 2020.

But 5? Five! Well, this is the one we have been waiting for.  Issued on Thursday 6th August, but not coming into force until Monday 10th?  You know we’ve got something special on our hands.

For one thing, this direction is due to remain in place until 30th August 2020, and – as things stand – “it is not anticipated that a further direction will be required.”

As before, the direction applies only to education authority schools.  The main focus is now on the re-opening of schools, and the requirements are set out plainly:

  • schools may reopen to pupils from 11th August 2020;
  • schools must reopen to pupils by 18th August 2020;
  • authorities must prepare contingency plans to be used “immediately in the event of a local coronavirus outbreak”.

There are no specific requirements about steps to be taken for safety, but there is a general objective:

preventing the transmission of coronavirus, the welfare of children and young people and staff, and the importance of continuity of education.

And, as always, education authorities have to have regard to “relevant guidance issued by the Scottish Ministers” (of which there is no shortage).

And, contrary to expectations, there is no continuation of the disregard of failures in certain statutory duties – including key deadlines and duties within the additional support needs legislation.  Therefore, the period during which education authorities (and parents) may be able to rely on failures to comply with certain duties being disregarded is limited to the period from 2pm on 21 May 2020 until 1 minute past midnight on 10 August 2020 – and only insofar as it is the restrictions within the direction(s) which have led to the failure.

This means, of course, that in returning schools have all the same duties in place to make adequate and efficient provision for pupils’ additional support needs, and to make reasonable adjustments (including the provision of auxiliary aids and services) to avoid substantial disadvantage to disabled pupils.  Under the circumstances, there may well be significant needs to be met, and adjustments to be made.  The latest direction has effectively removed any “but the pandemic” excuse for disregarding those duties.

You can access all of the Educational Continuity Directions (and the accompanying guidance documents) on the Scottish Government educational continuity direction page.

 

 

Educational Continuity (No. 3) Direction

The Scottish Government have issued a third Educational Continuity Direction on 2 July 2020, following the first two, which expired after 21 days. You can read all about the earlier ECDs in my blog posts, Educational Continuity Direction (21 May 2020) and Educational Continuity (No. 2) Direction.

The Educational Continuity (No. 3) Direction is exactly the same as the last one, apart from a couple of changes, and came into force at one minute past midnight, on Thursday 2 July 2020.

The big change in this one is that each education authority is required to plan and prepare for nursery provision (early learning and childcare, or ELC) and out of school care (or OOSC) to resume in educational establishments “no sooner than 15 July, having regard to relevant guidance issued by Scottish Ministers.”

The accompanying guidance suggests that this is likely to take place on 15 July 2020, following the review on transition to Phase 3 on 9 July 2020.

There is a corresponding tweak to the direction to allow staff to attend school premises in order to make preparations for out of school care re-opening.  Out of school care guidance is due to be published on 3 July 2020.  Finally, the ancillary provision section, which restricts access to educational establishments now includes a specific exception for “the provision of early learning and childcare and out of school care from 15 July 2020, subject to confirmation that such provision may resume being given by the Scottish Ministers no later than 9 July 2020.”

You may remember my comments about the use of the term “children” in the first and second directions.   The Educational Continuity Directions used the term “child/children” in the main, but also “pupils” and “young people”.  These all have different legal meanings.  In some places the term “child” was used where the provisions apply only to children – and not to those aged 16+, but elsewhere, the intention seemed to be that “child” should be read as including young people as well.  I am pleased to say that the language has been tightened up in this iteration, with the term “pupil” (which covers all ages) being used more often.

It remains the case that, in order to properly understand what is required, and what permitted, you need to read the direction itself – but also the relevant local and national guidance.

Educational Continuity (No. 2) Direction

The Scottish Government have issued a second Educational Continuity Direction, following the first, which expired on 10 June 2020.  You can read all about that one in my earlier blog post, Educational Continuity Direction (21 May 2020).

The Educational Continuity (No. 2) Direction is exactly the same as the last one, apart from two small but significant changes, and came into force at one minute past midnight, today Thursday 11 June 2020.

Access (by staff in the first place) to educational establishments will be permitted to facilitate and support children’s transitions (including those starting P1 & S1 in August).   As of Monday 15 June 2020, this can include attendance of pupils at school (but not at nursery school/classes).

It is perhaps unfortunate that the direction specifies “children’s transitions” and does not include the transitions of young persons (i.e. those aged 16+).  The main bulk of transitions will be for those at the nursery/P1 and P7/S1 stages, of course, but there will be some in the senior phase, especially those with additional support needs, who may require transition support at this time as well.

The second change is that, as of now, early learning and childcare can be provided if it is delivered “fully outdoors” having regard to Scottish Government guidance.

This is a similar wording to much of the rest of the direction, in that, in order to properly understand what is required, and what permitted, you need to read not only the direction itself (a slimline 4 pages); but also “relevant guidance issued by the Scottish Ministers”, any documents which set out the “appropriate local arrangements” and the guidance note which accompanies the direction, to work out what guidance is regarded as relevant to which bits.

Educational Continuity Direction (21 May 2020)

After nearly two months of schools in Scotland being closed, the Scottish Government have issued a formal direction, providing a legal basis for this state of affairs.

In terms of their powers to do so under Schedule 17 of the Coronavirus Act 2020,  Scottish Ministers have issued an Educational Continuity Direction, which came into force at 2pm on Thursday 21 May 2020.

As required by law, in making the direction Scottish Ministers a) had regard to advice regarding the coronavirus from Scotland’s Chief Medical Officer; and b) were satisfied that the direction was a “necessary and proportionate action” in relation to the continued provision of education.

Educational Continuity Direction

So, what does it do?

Geographical Coverage

The Direction applies across Scotland, and to all thirty-two education authorities.  There is no mention of independent or grant-aided schools, although the Act certainly allows for a direction to be issued which covers those schools (as well as further and higher education institutions).

Preparing to Re-open Schools

The direction requires education authorities to plan and prepare “for children to resume attendance at schools” – including nursery classes “at the earliest time it is safe to do so”, having regard to Scottish Government guidance.  In doing so, support for children at key transition points should be prioritised.

Staff may access schools from June 2020 for the purposes of planning and preparing (including any necessary alterations to premises) for the provision of:

  • learning and teaching on school premises and remotely “from August 2020”; and
  • early learning and childcare (i.e. nursery provision).

Continuing Provision

The direction also requires education authorities to support in-home learning “in accordance with appropriate local arrangements”.  This also applies (though perhaps to a lesser extent) to children receiving education at schools under the arrangements for vulnerable pupils and children of key workers.

Education authorities must provide education and childcare “pursuant to appropriate local arrangements” for:

  • the children of key workers (including NHS and social care staff); and
  • vulnerable children (including those eligible for free school meals, with complex additional support needs and at-risk children).

In doing so, the authority must have regard to relevant Scottish Government guidance.

Where the authority is unable to provide free school meals for children eligible for them, they are required to provide reasonable alternatives (e.g. other food and drink, vouchers, or cash).

In making provision or otherwise acting under this Direction, the authority must have regard to “the objective of preventing the transmission of coronavirus, to the welfare of children and young people and staff, and to the importance of continuity of education.”

Ancillary Provision

The direction requires education authorities to restrict access to their schools and nurseries, except as may be required for any of the above purposes, or for:

  • providing pupil estimates and grade rankings to the SQA;
  • maintaining the buildings and facilities;
  • using the buildings and facilities as part of the local authority’s pandemic response.

Legal Impact

One very significant effect of the direction is that it means that any failure to comply with a duty or time limit listed below is to be disregarded “to the extent the failure would be attributable to this Direction” –

A parental duty to comply with the duty to education your child (Section 30(1) of the 1980 Act) will be similarly disregarded.

Not that I am one for cross-border comparisons, but the position in England & Wales (as I understand it) is that the special educational needs (SEN) duties have largely been downgraded to a “reasonable endeavours” duty i.e. the LEA/school has a duty to make reasonable endeavours to make the required provision.

Here, the equivalent duty is to be disregarded entirely – although only to the extent that non-compliance was attributable to the direction itself. This is, in fact, stricter than it sounds.  As the guidance note points out “That means that any failures which cannot be attributed to a Direction would continue to be treated as a failure to comply with that duty or time limit.”

Duration and Review

The direction took effect at 2pm on Thursday, 21 May 2020 and remains in force for 21 days (or until revoked – if earlier). Effectively it will be reviewed and probably amended as we go on – every 21 days.  As the guidance note states: “It will be reviewed no later than 10 June, and it is expected that a further Direction will be made by 10 June to modify, replace or supplement it as appropriate.”

It does leave open the question – on what legal basis were the schools closed during the last two months, and what is the position re: the legal duties during that period?

Image by Gerd Altmann from Pixabay