Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021

You may remember back in April last year, when the Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 came into force, the Scottish Government indicated that the changes were intended to be temporary and should be reversed by March 2021.

Well, it is now March 2021, and (as of 27 February 2021) the changes have been at least partially reversed, with the coming into force of the Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021. Let’s recap:

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) was extended from 30 April to 31 May. It has now been revised to a mid-way point of 15 May. This is effectively the deadline for decisions in such placing requests for this year.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused was extended to 3 months following the receipt of the placing request by the education authority. This has been restored to the original 2 months period.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within a certain period following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This period was increased from 2 months to 4 months, and has now been revised to 3 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within a certain period following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This period was increased from 14 days to 28 days, and has now been returned to 14 days.
  • An appeal committee must now acknowledge receipt of an appeal reference within 5 working days once more (this had been increased to 28 days).
  • A hearing of the appeal must be held by the appeal committee as soon as reasonable practicable within the period of 2 months following receipt of the reference (this had been increased from 28 days to 3 months). If this is not possible “owing to circumstances beyond their control”, the hearing should be held “as soon as reasonably practicable” (changed from “as soon as possible”). The same applies to combined hearings.
  • The education appeal committee must now give notification of the date and other details of a hearing not later than 14 days after receipt of the reference (changed from 14 days to “as soon as reasonably practicable” previously).
  • The format of hearings may change, as the regulations allow for a hearing to be conducted in whole or in part by video link, telephone or “other means of instantaneous multi-party electronic communication”. This provision remains in place – which is a very good thing.
  • The appeal committee may also (if all parties agree) decide an appeal reference without a hearing, based on consideration of written submissions and evidence alone. This provision remains in place – which is a very good thing.
  • Education appeal committees now, as before, have 14 days to notify parties of their decision, and the reasons for it (it was changed to 28 days).

The regulations don’t include any transitional provisions, it’s not easy to be 100% certain, but to the best of my understanding, the new time limits etc. take effect as of now, even in the case of placing requests or appeal processes which are already under way. The regs don’t explain what happens to cases that are, for example, 2.5 months after a request when the deeming provisions change!  My best guess is that it’s deemed on the date of the change (i.e. 27 Feb 2021) in those circumstances.

For the sake of completeness, reg 5 also amends the Nutritional Requirements for Food and Drink in Schools (Scotland) Regulations 2020 to clarify that certain requirements re: oily fish, deep fried food, chips and pastry products apply separately to evening meals for secondary pupils in education authority hostels.

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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.

ASL Review Action Plan published

The Scottish Government and COSLA have issued their action plan in response to the ASL Review today. You can read the action plan here: https://www.gov.scot/publications/additional-support-learning-action-plan/.

As you know, I am in the process of working my way through the review itself in detail, and will return to a detailed coverage of the action plan once that is complete.

However, in the meantime, a quick summary.

Almost all of the recommendations in the review are accepted, with one set of recommendations being partially accepted. True to form, there is much set out here which is already in place or underway. The first review of progress against the recommendations is due by October 2021.

Continue reading “ASL Review Action Plan published”

Potential Energy (Part 4)

Theme 3 of the Support for Learning review is “Maintaining focus, but overcoming fragmentation”.  It is a shorter section, covering only two A4 sheets, but addresses an important issue.  How do we ensure specialist knowledge and experience is available in the system for those who need it, without creating “silos” and giving the impression that additional support for learning is only for specialists?

Continue reading “Potential Energy (Part 4)”

Potential Energy (Part 1)

As promised, and following a delay (for which I apologise), I finally turn my attention to the independent review of the implementation of Additional Support for Learning legislation in Scotland.  The review was chaired by Angela Morgan, and the report, titled “Support for Learning: All our Children and All their Potential” was published in June 2020. A formal response from Scottish Government and COSLA is expected in the Autumn.

There has not been much in the way of commentary on the review, with this interesting article by Alison Brown being a rare example.

I plan to take the same approach as I did with the mainstreaming guidance, which is to consider the report in shorter chunks.  This keeps things manageable for me, and allows for a more in-depth analysis of each section. As always, my focus is on the legal implications.

Continue reading “Potential Energy (Part 1)”

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 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

Additional Support Needs Update (Issue 7)

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

This edition looks at changes to the law brought about as part of the Scottish Government’s response to the Covid-19 pandemic, explaining changes to legislation and the new guidance applying to education.  There is a separate “how to” section with some tips in relation to placing requests, given the revised timescales which now apply.
The support spotlight this edition looks at different organisations across the country providing innovative responses to assist families at this difficult time.

Do let me know what you think about the newsletter in the comments.

Additional Support Needs Update (Issue 7) – PDF

Image by Tumisu from Pixabay

Placing request timescales amended

The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 came into force on 23 April 2020, having been laid before the Scottish Parliament at 4.30pm the day before.

In short, they give the education authority more time in which to take a decision on placing requests, and education appeal committees more time in which to hear appeals.

Changes to the Education (Placing in Schools) (Scotland) Regulations 1982

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days

Changes to the Education (Appeal Committee Procedures) (Scotland) Regulations 1982

  • An appeal committee must now acknowledge receipt of an appeal reference within 28 days (an increase from 5 “working days”).
  • A hearing of the appeal must be held by the appeal committee as soon as reasonable practicable within the period of 3 months following receipt of the reference (an increase from within 28 days). If this is not possible “owing to circumstances beyond their control”, the hearing should be held “as soon as reasonably practicable” (changed from “as soon as possible”). The same applies to combined hearings.
  • The education appeal committee must now give notification of the date and other details of a hearing as soon as reasonably practicable (changed from 14 days after receipt of the reference in most cases).
  • The format of hearings may change, as the regulations allow for a hearing to be conducted in whole or in part by video link, telephone or “other means of instantaneous multi-party electronic communication”.
  • The appeal committee may also (if all parties agree) decide an appeal reference without a hearing, based on consideration of written submissions and evidence alone.
  • Education appeal committees have 28 days to notify parties of their decision, and the reasons for it (changed from 14 days).

Changes to the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005

These are the equivalent regulations to the Education (Placing in Schools) (Scotland) Regulations 1982, in relation to children and young people with additional support needs.

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days.
  • The deadline for the authority making known to the appellant and the committee all of the information relevant to their decision is now “as soon as reasonably practicable” (changed from “immediately”).

Observations

The changes to the education appeal committee regulations will impact on exclusion cases as well as placing request cases.

The deadline for a parental appeal to the education appeal committee remains the same at 28 days.

The deadlines applicable to appeals to the First-tier Tribunal for Scotland (Health and Education Chamber) remain the same. However, these were never as stringent in the first place, and are currently subject to the Guidance to Tribunal Members No 01/2020 “Hearings and the Covid-19 Outbreak” – which means that only time critical cases can currently proceed to a hearing (with a fairly strict definition of “time critical”).

As you know, most placing requests (including for children or young people with additional support needs) are heard by the education appeal committee. Appeals on placing requests for special schools (or special units), or for children and young people with a Co-ordinated Support Plan are heard by the Tribunal instead.

The implication of this is, of course, that if placing request decisions are not being taken until 31 May, and the appeal committee has up to four months to hear an appeal, in all likelihood that leads to significant numbers of appeals on placing requests not being heard until well into the next academic year. Apart from anything else, this makes transition planning for such cases challenging, to say the least.

The final point to make is that these regulations are not made under the new powers conferred by the Coronavirus Act 2020 or the Coronavirus (Scotland) Act 2020. They are made using existing regulation making powers. As such, there is no expiry date on these changes, and no scheduled review date. These changes will remain in force until further regulations are passed to amend them.

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