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..”
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.
Having finished describing the four key features of inclusion (present, participating, achieving and supported), the Scottish Government guidance on the presumption of mainstreaming, then moves on to consider the question of inclusive practice.
In this, the fourth part of this series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the second of the “Key features of inclusion” : Participating.
The Christmas holidays are now over, and it’s time I got back to the old blogging. In the third part of this series on the new (2019) Guidance on the presumption to provide education in a mainstream setting, I will be looking at the first of the “Key features of inclusion” : Present.
In the first part of this series (Mainstreaming, I presume … (Part 1)) I looked at the legislative basis for the presumption of mainstreaming. In this next part, we will be looking at the question of inclusion.
The term “inclusion” is not used in the Standards in Scotland’s Schools etc. Act 2000, or in the Education (Additional Support for Learning) (Scotland) Act 2004. In fairness, it is a difficult concept to define in statutory terms. However, the explanatory notes to the 2000 Act, talk about the presumption of mainstreaming in these terms: “This section aims to establish what is effectively a presumption in favour of ‘mainstream education’ for all children in Scotland. It will strengthen the rights of children with special educational needs to be included alongside their peers in mainstream schools.” So, a right to inclusion has always been the intention of the legislation.
From an international perspective, it is Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which best outlines the position, with its requirement on signatories (including the UK) to “ensure an inclusive education system at all levels”.
It goes on to require:
a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
b) Persons 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;
c) Reasonable accommodation of the individual’s requirements is provided;
d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
Article 24(2), UNCRPD
The UNCRPD is not currently incorporated into UK or Scots law in the same way that the European Convention on Human Rights is, or the UN Convention on the Rights of the Child will be (under current proposals). However, it remains an international obligation (albeit one which the UK Government have accepted with two fairly substantial reservations – see ALLFIE on Article 24). Governments, including the Scottish Government, are required to have regard to the Convention in making law and policy and to take steps to ensure its effective implementation. The Convention can also be referred to by individuals taking legal action, as an aid to the interpretation of existing law (as it is presumed that neither Westminster nor Holyrood Parliaments would legislate in a way which is incompatible with its international obligations).
“A Fairer Scotland for Disabled People” is the Scottish Government’s delivery plan for the UNCRPD to 2021. However, this does not make specific mention of the right to inclusive education, or of Article 24, or of the presumption of mainstreaming. It does make mention of “Disabled people are visible and participating within communities, learning and education, volunteering and employment.” and “Equal opportunities for disabled people in education and employment.” – which captures some of it, I suppose.
The Ministerial Foreword to the guidance, however, could hardly be clearer in its intentions re: inclusion, with the Cabinet Secretary for Education spelling out the benefits of inclusion: “affords all children and young people the opportunity to be a part of a community, boosting their emotional wellbeing and aiding the development of social skills.” as well as being clear on the limitations of the presumption of mainstreaming: “Being present in a mainstream school should not be the primary marker of successful inclusion.” There is also, a very welcome (and child-centred) acknowledgement of the importance of how inclusion is experienced by the individual pupil.
The introduction to the guidance then gets to grips with what is meant by “inclusion”. This is helpful, actually. The “Scottish vision for inclusive education” is pretty vague as you might expect – but usefully links an inclusive approach to the achievement of equity and excellence (the tiresome two watchwords of modern education policy in Scotland).
What is more helpful, in my view, is the identification of four key features of inclusion:
The guidance goes on to consider each of these features in turn, as will I …
Edited (18 November, 2019) following helpful input from A24 Scotland.
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.
Since the beginning of 2018, further appeals in additional support needs cases go from the Tribunal to the Upper Tribunal for Scotland. It has taken until now, however, for a case to actually get as far as that and yield a decision for us to look at. Let us set aside for the moment my own personal disappointment that it was not one of my cases, and the fact that it is only a determination of the question of permission to appeal, and see what the case actually says.
The case in question is Midlothian Council v. PD  UT 52 (PDF) and it is an appeal against a decision of the First-tier Tribunal for Scotland (Health and Education Chamber) to grant a placing request appeal in favour of the appellant (the parent of a child with additional support needs).
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.
80% of learning in schools is through vision – which means that traditional education models exclude children with visual impairments. The number of
children with a visual impairment (VI) has more than doubled in the last seven years which, when coupled with a reduction in specialist VI teachers, makes the issue of how VI children are supported in their learning journey a critical one.
Attainment, measured by the number of pupils moving onto a ‘positive destination’ after school, is 5% lower for children and young people with a visual impairment than for those without additional support needs (although it is currently on an upwards trajectory). More worryingly, progression to higher education for VI students is on the downturn.
With Scotland’s education system presuming that a child will be educated in a mainstream environment (Section 15, Standards in Scotland’s Schools etc Act 2000), it is likely that visually impaired pupils will attend a mainstream school. The fall in numbers of specialist teachers and support staff, however, can mean that VI children are left to cope with a visual learning environment without adequate adaptation or support.
The Royal Blind, the charity which runs the Royal Blind School, has recently launched a campaign to highlight the difficulties faced by pupils with a visual impairment. ‘Our Vision for Equal Education’ furthers their commitment to a future where all vision impaired children and young people receive the specialist support they need. The campaign includes four key actions:
- A Scottish Government Action Plan to recruit and retain the specialist teachers needed for the increased numbers of vision impaired pupils.
- A new SQA training qualification in vision impairment for education support staff and others, including those providing care and therapy.
- Effective transitions for vision impaired young people post-school education.
- A fair and pupil centred placement system for vision impaired young people.
These campaign aims, if realised, would support education authorities and others in fulfilling their duties to make adequate provision for the additional support needs of pupils with a visual impairment, and to make reasonable adjustments to avoid substantial disadvantage to such pupils as a result of their disability.
For more information about the campaign, please go to: https://www.royalblind.org/royal-blind/campaigns/reports-and-consultation-responses/our-vision-for-equal-education
Photo credit: https://www.flickr.com/photos/rolanddme/4944962234