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.
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.
Education authorities in Scotland should be paying attention at the back, following a decision under the Equality Act 2010 and its application to the planning of additional support for disabled pupils. A recent Tribunal decision (now upheld on appeal) found that a failure to provide an adequate Co-ordinated Support Plan (CSP) amounted to unlawful disability discrimination by the Council.
The duty to provide a CSP is not found in the Equality Act 2010 but in Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004. The fact that a failure to comply with a duty in this unrelated statute can amount to discrimination is of particular importance – especially for pupils who are both disabled and have additional support needs. Alert readers may recall the case of DM v. Fife Council in which the Council’s failures under the post-school transition duties under the 2004 Act, led to a finding of discrimination under the 2010 Act.