Additional Support Needs Update (Issue 2)

The second newsletter is now available to download. Do please read it, share it and subscribe for future editions.

This editions covers: notes on the news; the attainment challenge; meeting children’s healthcare needs in school; school clothing grants; and a spotlight on Enquire.

You can also let me know what you think about the newsletter or its contents in the comments.

The Additional Support Needs Update, Issue 2

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Autism, Disability and School Exclusions

Regular readers of this blog and my Additional Support Needs Update newsletter may recall a case in which a mother successfully claimed against Glasgow City Council for discriminating against her son, who has an Autistic Spectrum Disorder. The nub of that case was that he had been excluded, to the detriment of his mental health, for behaviour related to his disability. The behaviour in question included occasions when he was distressed, and when feeling cornered, he could lash out.

The Tribunal, in that case, was satisfied that the child met the definition of a disabled person for the purposes of Section 6 of the Equality Act 2010. This meant that the protection against discrimination afforded by the Equality Act came into play, and the education authority had an obligation to make reasonable adjustments for him in school.

The reasoning of the Tribunal seems straightforward. The child had a disability, and the behaviours linked with it were protected by the Act. However, as often is the case, the law is not as straightforward as it could be. There are situations where being a disabled person in terms of the Act may not offer universal protection. Although all disabilities should be treated equally, some are more equal than others.

The Regulation 4 exception

Reg 4 of the Equality Act 2010 (Disability) Regulations 2010 sets out conditions that are not to be treated as impairments or disabilities – including things like voyeurism and a tendency to set fires. One such exception at Reg 4(1)(c) is “a tendency to physical .. abuse of other people”. Guidance issued in May 2011 makes it clear that this exclusion applies not only where such behaviour constitutes an impairment in itself, but where it “arises as a consequence of, or a manifestation of, an impairment that constitutes a disability for the purposes of the Act”. In the latter circumstance, the behaviour that falls within the exception will be excluded from protection, but the rest of the effects of the disability will be covered.

Put simply, where your child has a condition which manifests itself in a number of ways, including physical outbursts, they will be protected by the Act except where any discrimination they may experience is as a result of the physical outbursts (if the outbursts amount to a tendency to physical abuse). Those are an excluded condition under the Act.

Even if your child, like the child in the Glasgow City Council case, is excluded because the school environment leads to a violent response, you may find that there is a barrier to challenging that exclusion.

Human Rights for all

You may be thinking that that does not seem in the spirit of the Act – and you would, in my view, be right. Although it was not an argument that ultimately required to be decided in the Glasgow City Council case, it was one I made in front of the Tribunal – in that case and in others.

Now, however, the matter has been put determined in a recent Upper Tribunal decision in England: C & C v The Governing Body of a School (SEN) [2018] UKUT 269.

The child, in this case, had autism, anxiety and Pathological Demand Avoidance (PDA). The appeal concerned a fixed term exclusion from the school for 1.5 days. The reason given for the exclusion was ‘aggressive behaviour’. The First Tier Tribunal dismissed the claim as although it considered that the child generally met the definition of a disabled person, he had been given the exclusion as a result of his ‘tendency to physical abuse’.

The family appealed on the basis that Reg 4(1)(c) should be disapplied to avoid a breach of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 14 provides that the enjoyment of the rights conferred by the Convention should be secured without discrimination. One of the rights covered by the Convention is the right to education (in Article 2 of the First Protocol).

The Upper Tribunal agreed that Reg 4(1)(c) applied to both freestanding conditions as well as conditions arising in consequence of protected impairments. While there may be good social policy reasons to exclude free standing conditions ‘that are not generally recognised as disabilities’, the Secretary of State failed to justify, in the context of education, maintaining a provision:

“which excludes from the ambit of the protection of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special educational provision to be made for them.”

The decision making process was fortified by the belief of officials, set out in a discussion paper in October 2017 and produced to the Tribunal, ‘that there would be fewer exclusions of disabled children from school if regulation 4(1)(c) applied only to free-standing conditions’

For those reasons, the Tribunal found that, in the context of education, regulation 4(1)(c) of the 2010 Regulations violates the Convention, and should not be applied in the circumstances of this particular case.

So, what now?

This is a decision of great significance across Great Britain. In Scotland, exclusion rates for children with additional support needs are twice those of children who don’t require support. In England and Wales, a child with a disability is seven times more likely to be permanently excluded. It is hoped that this judgement will lead to schools thinking twice before resorting to exclusion, and to more appropriate supports being put in place by budget holders at authority and government levels.

The decision does not mean that disabled children cannot be excluded for violent behaviour, simply that the school must be able to justify in law any such exclusions. Education authorities in Scotland should also consider their exclusion practices more generally, as higher rates of exclusion for disabled pupils may leave them vulnerable to indirect discrimination claims as well.

It is encouraging that the Westminister Government seem to be considering an amendment to the Regulation. Hopefully, this judgement will speed that up. With Brexit putting the UK’s commitment to the Convention in doubt, having this concession enshrined in statute would offer some peace of mind to families with disabled children.

school tie

School Uniform Grants across Scotland’s 32 education authorities

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.

Spreadsheet guide to School Uniform Grants

 

Image Credit: lucuzade – https://en.wikipedia.org/wiki/File:Richmond_School_Tie.jpg

Long division of power

The consultation on the new Education (Scotland) Bill closed on 31st January 2018. The Scottish Government’s aim was for the consultation paper to set out how the proposed “changes will improve educational outcomes for young people, how they will work in practice, and what legislative changes are needed to enable them to happen.” In short, they invited views on whether the changes would deliver empowered schools and a teacher-led system.

The mechanism for achieving this goal can be found in the raft of powers to be devolved to headteachers in the ‘Headteachers’ Charter’. Currently exercised primarily by the education authority these powers relate to the curriculum, staffing and budgets. The changes also propose the beefing up of parental involvement and engagement; pupil participation and new bodies called Regional Improvement Collaboratives.

While the scope and ambition of the proposals are to be commended, in my response to the consultation paper, I flag genuine concerns as to the division of power, duties and accountability. Empowering schools is one thing, but power without a transfer of legal responsibility creates a vacuum of accountability into which bad decisions could escape unchallenged. Throw Regional Improvement Collaboratives into this opaque accountability mix, and these issues become seriously problematic.

For this and other comments on the effect of the Bill as currently drafted, please see my full consultation response below.

Empowering Schools

The consultation document says that local authorities will retain their “overarching duties” in relation to the provision of education. The fifth paragraph of p7 specifically references the following duties:

  • The duty to ensure the provision of adequate and efficient education in their area (s.1(1) Education (Scotland) Act 1980), having regard to the age, aptitude and
    ability of the pupils (s.1(5) of the 1980 Act)
  • The duty to ensure that school education is directed to the development of the personality, talents and mental and physical abilities to their fullest potential.
    (s2(1) of Standards in Scotland’s Schools etc. Act 2000)
  • The duty to have regard to the views of children and young people in decisions which significantly affect them (s2(2) of the 2000 Act)

There are, in fact, many more duties which apply to education authorities – as I understand it, the legal duties (and legal responsibility) will remain with the
education authority in almost all regards.

The consultation document notes that “In practice, when it comes to actual provision of school education, headteachers and the teachers in their schools carry out
these roles on behalf of the local authority which employs them.” This is true of every legal duty imposed on a local authority and is not a good reason in itself to
consider a transfer of powers and responsibilities.

In fact, as the consultation reads, what is being suggested is that the power to make decisions should be transferred to Headteachers, without also transferring
legal duties, responsibility or accountability as well. There are obvious problems with this separation of power and accountability. For the parent who has a
complaint (or a legal case) in relation to the actions of a headteacher, to whom do they address that complaint. To the headteacher in the first place, perhaps.

Thereafter where? Is there any point in making a complaint about a headteacher to the education authority, if they are not able to direct the headteacher in
relation to that matter? What if the headteacher claims to be following the policy or guidance of the Regional Improvement Collaborative, which is headed by the
Chief Executive of another local authority altogether? Where does accountability lie for the legal responsibilities being devolved?

If power is genuinely to be transferred to individual headteachers, then meaningful (and legal) accountability for the exercise of those powers must also transfer.

Pg 9 mentions a “model of shared accountability” – the danger of this approach is that it can be difficult then to find meaningful redress where problems arise. Unless the Scottish Government actually intend to make each of these three (headteachers, local authorities and regional improvement collaboratives) jointly and severally liable for each others’ acts and omissions, it is difficult to see how this serves to do anything other than obscure where legal responsibility lies.

Headteachers’ Charter

The requirement for schools to work together will be difficult to achieve without first constituting schools as a legal entity with responsibilities all of its own. Has consideration been given to the potential impact of the duty to work collaboratively with other partners on the CSP? Where the collaboration involves a school from another local authority, that may be regarded as an “appropriate agency in terms of s.23 of the 2004 Act. Are the Regional Improvement Collaboratives to be regarded as an “appropriate agency”?

The local authority’s annual statement of improvement objectives, linked with both the school improvement plans and the national priorities. They required to include matters covered by the Equality Act 2010. The local authority will remain the responsible body in law – accountable for Equality matters in relation to each of the schools it manages. Removing that body’s requirement to plan to improve equality as part of an annual planning process is problematic.

Annual statement of improvement objectives also have a requirement re: Gaelic language – where does this responsibility lie now?

Having individual schools create school improvement plans which are consistent with annual improvement objectives set by a larger central body (the education authority) is one thing. Having an even larger central body (a Regional Improvement Collaborative) create a single improvement plan which takes into account and somehow brings together potentially hundreds of different school improvement plans each based on individual local factors seems to me a much more difficult proposition.

Pg 11 states that “local authorities must be able to allocate resource to support the provision of additional support for learning.”. This seems to attempt to draw a
separation between the provision of mainstream education and “additional support”. This is a matter of concern. For one thing, the provision of additional support
is most often done within mainstream schools and carried out by existing school staff (class or subject teachers, support staff etc) using existing school resources. It is both artificial and retrograde to try and separate out “resource to support the provision of additional support for learning” from other resource allocation. To do so is to suggest that additional support is an added extra rather than a core requirement – something to be expected of every school and every teacher – it also undermines the idea of inclusion for pupils with additional support needs.

There are potential difficulties with allowing headteachers to recruit staff, while the education authority remain responsible as employer for performance, discipline or grievance. What happens if the grievance is that the member of staff was not selected for a promotion? Or that they are not adequately supported in their work due to a lack of recruitment to key roles? How does the local authority respond to such a complaint in relation to decisions in which they have had no input?

Pg 13 states that “Local authorities will continue to be responsible for ensuring provision of specialist services and for managing provision of support for learners’ additional needs.” Again, this is a matter of concern. It is unrealistic and a backwards step to try and differentiate “provision of support for learners’ additional needs” in this way.

Additional support is not an added extra rather it is a core requirement – something to be expected of every school and every teacher. It also undermines the idea of inclusion for pupils with additional support needs.

Parental and Community Engagement

Legal duties for working collaboratively with parent councils, and the definition of parental involvement and engagement are said to include a prominent place for
learning in the home and family learning. Is the intention to impose a duty (or expectation) that parents have a duty to engage in family learning in the home? To
do so in a particular way or to a particular standard? For schools to have a role in monitoring or supporting such learning? Such duties will need to be carefully
drafted to avoid creating unrealistic expectations.

Further, one important aspect of parental engagement is the ability to exercise a democratic control on the education authority through local elections. If the
responsibility for children’s education is being dispersed to schools and Regional Improvement Collaboratives, that means that there is little remaining over which
parents (and others) will have the ability to influence by voting.

Pupil Participation

The consultation document notes an intention for general duties on Head Teachers to promote and support pupil participation. However, there is no legal duty to consult with pupils or to hear and take account of their views in relation to these same “specific aspects”. Given that pupils have a right to be consulted on prescribed changes in terms of the Schools (Consultation) (Scotland) Act 2010, and can exercise their own rights in terms of recent amendments to the Education (Additional Support for Learning) (Scotland) Act 2004, my view is that the time has now come to formalise the role of the pupil council, especially for secondary age pupils. Statutory guidance to pupil councils should also be issued and support given to ensure that pupils councils are a genuine means of pupil expression and not just a tick box exercise with parameters set by school staff.

Regional Improvement Collaboratives

Care must be taken in embedding these requirements in legislation that the duties of the local authorities do not become diluted and masked. The collaborative areas are so large that it may be difficult to adopt strategic priorities for improvement that are not very general indeed. The next step down is school improvement planning. Given that so many other relevant plans will remain at local authority level (children services planning, public sector equality duty, accessibility strategies) it may be a mistake to remove the requirement for improvement planning from local authorities – and certainly difficult to retain a sense of local democratic accountability.

Education Workforce Council for Scotlan

It will also be important that as a registration and regulatory body, clear and impartial complaints processes are available and accessible for parents, pupils and others who may have cause to raise concerns about misconduct or competence.

The Education Workforce Council for Scotland is an opportunity to make sure that all those working with children in schools and other educational contexts are properly qualified and trained. There is a danger that specifying “additional support staff” or “ASL support workers” as a separate category gives the impression that responsibility for additional support lies only there. While such workers should certainly be covered, it would be important in terms of professional standards that this responsibility is specified front and centre for all those within the education workforce (of whatever type).

Iain Nisbet, Education Law Consultant

Heading to Court?

According to The Herald, “New powers for headteachers ‘makes them target for legal action'” – this conclusion being based on submissions made by COSLA in their response to the Empowering Schools consultation by the Scottish Government. Such a move would be condemned by some, and welcomed by others, but is it true?

Possibly, but probably not.

I’ll explain. The consultation is proposing that headteachers take on a raft of new powers, currently exercised by the education authority in relation to the curriculum, staffing and budgets. These new powers would be set out in a “Headteachers’ Charter”. These changes are part of a raft of changes proposed to the governance arrangements for schools, which also include the beefing up of parental involvement and engagement and new bodies called Regional Improvement Collaboratives.

Now, it is true that the idea of devolving legal powers to headteachers raises issues of where legal accountability lies. I have raised similar concerns in my response to the same consultation (more of which on this site, later). It is also true that the proposals do take us closer to the structures seen in England & Wales, where schools have much more autonomy and where legal actions are indeed often brought against the “Headteacher and Governors of Hogwarts School of Witchcraft and Wizardry” (or wherever).

Without seeing the draft Bill, it is difficult to be clear on this, but it does not seem to me that this is what the Scottish Government has in mind. The consultation document is full of caveats which strongly suggest that the legal powers will in fact remain with the local authority who will (ultimately) also have the final say on all of this, when it comes down to it.

The law already allows the delegation of education authority functions to school level, and the Scottish Government’s main issue seems to be that this is not happening enough. And, of course, most of the education authority’s statutory functions are already carried out in practice by teachers, headteachers and other school based personnel. But that is also true of almost all Council functions. Most roads duties are, in fact, implemented by individual Council employees doing inspections, maintenance, repairs etc. – that doesn’t mean you’ll be taking Jack or Jill Council-Employee to court if you hit a pothole!

With the Pupil Equity Funding distributed to individual schools this year, supposedly for headteachers to spend at their discretion, what we actually found was that the money was subject to conditions imposed by Scottish Government and then further guidance and direction (to a greater or lesser extent from authority to authority) from Council HQ. The reality was subtly different from the rhetoric.

My guess is that the Bill will seek to require education authorities to exercise their statutory functions in such a way that passes decision making to headteachers in specific areas without actually conferring legal rights or duties in any meaningful way. The Headteachers’ Charter will have the status of guidance, but the education authorities will ultimately have the final say – and will also be where the buck stops. Until and unless schools are given an autonomous legal status, this is not likely to change. If headteachers are in court, it will be as witnesses to a case brought against the Council, their employers.

Photo Credit: https://www.flickr.com/photos/stevendepolo/4874088075/in/photostream/ (Steven Depolo)

Anti-Bullying Policies at School

A recent decision of the Scottish Public Services Ombudsman (SPSO) provides a useful reminder of the importance of schools having and implementing their own anti-bullying policies.

The complaint, against the Highland Council, was that they had failed to ensure that the school attended by the complainant’s daughter had an anti-bullying policy in place. The SPSO upheld the complaint. Although the Council’s own policy was thorough, the Ombudsman found that the school did not have its own policy in place that sufficiently met the requirements of the council’s policy.

The SPSO recommended that the council:

  • apologise to Miss C and Miss A for the failings identified in this case; and
  • reflect on the failings identified and advise us of the actions they will take to address these.

A National Approach to Anti-Bullying for Scotland’s Children and Young People” (Scottish Government, 2010) was drawn up by the Scottish Anti-Bullying Steering Group (SABS) which included representation from a number of relevant public and voluntary sector bodies.

The National Approach adopts a definition of bullying which is focussed on its impact on those experiencing it:

“Bullying can be understood as behaviour which leaves people feeling helpless, frightened, anxious, depressed or humiliated.” (p4)

It sets anti-bullying firmly in the context of GIRFEC and the Curriculum for Excellence, and adopts as one of its key principles:

“We will seek to prevent and tackle bullying, through the development and implementation of effective anti-bullying policies and practices … We will address the needs of children and young people who are bullied as well as those who bully within a framework of respect, responsibility, resolution and support” (p8)

A school’s anti-bullying policy and practice are therefore seen as the main ways in which preventing and tackling bullying is done.

The National Approach is clear that all organisations that work with children and young people should develop and implement an anti-bullying policy.

It goes on to specify that anti-bullying policies should include the following (p9):

  • a statement which lays out the organisational stance on bullying behaviour;
    a definition of bullying, developed through consultation creating a shared understanding between all parties involved;
  • expectations or codes of behaviour and responsibilities for staff and children and young people;
  • preventative and reactive strategies showing what an organisation commits itself to, what strategies it will employ when faced with bullying incidents or allegations and to prevent bullying from happening;
  • clarity on how and how often the organisation will communicate its anti-bullying policy and to whom; and how parents and carers will be informed of incidents;
  • the recording and monitoring strategies that will be used for management purposes; and
  • how and how often the policy will be evaluated to understand how successful and effective the policy is.

By following the National Approach, schools will be best placed to create a strong anti-bullying ethos and to respond effectively to incidents of bullying as they arise.

Image credit: By Alejandrasotomange (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons

Excluded from school – what next?

The research evidence on exclusions from school make for grim reading.

The 2013 Edinburgh Study on Youth Transition and Crime found that pupils who were excluded from school at age twelve were four times more likely to be jailed as adults.

Boys, children living in single parent families, and pupils from the poorest communities were most likely to be excluded from school. Equally badly behaved pupils from more affluent areas and those from two parent families were accorded greater tolerance and, as a consequence, were far less likely to be expelled.

The study findings show that one of the keys to tackling Scotland’s high imprisonment rates is to tackle school exclusion. If we could find more imaginative ways of retaining the most challenging children in mainstream education, and ensuring that school is a positive experience for all Scotland’s young people, this would be a major step forward.
– Professor Susan McVie, Co-director of the study

Additionally, Scottish Government statistics from December 2015 reveal that pupils with additional support needs are more than four times more likely to be excluded than pupils with no additional support needs.

And all of this records only formal exclusions, for which there is a paper trail. By definition, the use of “informal exclusions”, cooling off periods, invitations to remove a child, part-time timetables and other means of denying a child their right to education – are not recorded and therefore not widely understood. Anecdotally, this affects children with additional support needs and/or disabilities disproportionately.

Parents (and children with capacity – usually aged 12 or over) have a right of appeal against a school exclusion, whether it is a temporary exclusion or a removal from the school roll.

As things stand, an appeal will be heard, in the first instance, by the education appeal committee. After that, the parent, young person or child has a further right of appeal to the Sheriff Court. The appeal committee has the power to confirm or overturn the exclusion, and to vary any conditions for readmission. The Sheriff, on appeal, has the same powers.

In terms of the Tribunals (Scotland) Act 2014, this jurisdiction will be transferred to the First-Tier Tribunal for Scotland in due course – which is a very welcome change. A right of further appeal will lie to the Upper Tribunal for Scotland. This should make the process of appeal more transparent, independent and accessible.

The right of appeal only applies in relation to public schools, i.e. those managed by the local authority – although some independent schools may have equivalent procedure in place (e.g. an appeal to the board of governors).

Where the excluded child has a disability, an exclusion from school may amount to unlawful disability discrimination in terms of the Equality Act 2010. This is a complex piece of legislation and it can be difficult to tell without specific legal advice whether an act of discrimination has taken place.

A disability claim can be made in respect of any school exclusion, whether the school is an independent, grant-aided or education authority school. Such claims must be made within six months of the exclusion, and are heard by the Additional Support Needs Tribunals for Scotland. The Tribunals have much broader powers that the appeal committee, which might include ordering an apology, staff training, a change in the school’s (or Council’s) policy on exclusions etc. The Tribunal cannot, however, make an order for compensation.

Where a child with additional support needs has been excluded from school, do remember that there are routes by which that decision can be challenged. Particularly where the use of exclusion has become commonplace or is adversely affecting the child’s education or wellbeing, an appeal or a disability claim may be well worth considering.

Reasonable adjustments for disabled pupils

Some pupils with additional support needs are also disabled and, as such, enjoy the additional protections of the Equality Act 2010.

One of these additional protections is the reasonable adjustments duty.

The duty to make reasonable adjustments includes three requirements:

  1. adjustments to avoid substantial disadvantage arising from a provision, criterion or practice (“PCP”);
  2. adjustments to avoid substantial disadvantage from the physical features of a building;
  3. adjustments to avoid substantial disadvantage by providing an auxiliary aid (or auxiliary service).

The second requirement does not apply to schools. In Scotland, the Education (Disability Strategies and Pupils Educational Records) (Scotland) Act 2002 apply instead. This Act requires responsible bodies for schools to draft an accessibility strategy, which sets out planned improvements to the physical accessibility of the school (among other things). Cf. “Planning improvements for disabled pupils’ access to education: Guidance for education authorities, independent and grant-aided schools” (Scottish Government Guidance).

A failure to comply with a reasonable adjustments duty in relation to any disabled person amounts to unlawful discrimination.

The reasonable adjustments duty for schools applies in relation to:

  1. deciding who is admitted to the school; and
  2. providing education or access to a “benefit, facility or service” (this might include school lunches, uniform policy, playtimes, out of school trips, after-school clubs, assemblies, discipline etc. etc.).

In deciding whether an adjustment would be reasonable or not, you should read and consider the Technical Guidance for schools in Scotland, which gives a list of factors to bear in mind together with several useful examples.

Without intending to be exhaustive, and in no particular order, the following are some of the factors that are likely to be taken into account when considering what adjustments it is reasonable for a school to have to make:

  • The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;
  • The extent to which support will be provided to the pupil under the Education (Additional Support for Learning) (Scotland) Act 2004, as amended;
  • The resources of the school and the availability of financial or other assistance;
  • The financial and other costs of making the adjustment;
  • The practicability of the adjustment;
  • The effect of the disability on the individual;
  • Health and safety requirements;
  • The need to maintain academic, musical, sporting and other standards;
  • The interests of other pupils and prospective pupils.

Technical Guidance (6.29)

Example:
A pupil with learning difficulties is excluded for repeatedly getting up from his seat during lessons and disrupting other pupils. It is the school’s policy that repeated disruptive behaviour is punished by exclusion. The school is under a duty to make reasonable adjustments to its policy, which might mean disregarding some of the disruptive behaviour and working with the pupil to find a way in which to help him to remain in his seat during lessons.
Technical Guidance (4.12)

Example:
A visually impaired child requires printed handouts to be prepared in 24pt font or larger. This can easily be accommodated by ensuring that fonts are reset to this size prior to any documentation being printed.
Technical Guidance (6.45)

A school’s duty to make reasonable adjustments is often referred to as an “anticipatory duty” and it is owed to disabled pupils generally. Therefore, schools must plan ahead and consider in advance what disabled pupils may require, rather than simply responding to difficulties as they arise.