Motion on mainstreaming

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.

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In Safe Hands?

Section 7 of the Commissioner for Children and Young People (Scotland) Act 2003, as amended, allows the Commissioner to conduct investigations into:

whether, by what means and to what extent a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (such an investigation being called a “general investigation”)

The first such investigation undertaken was on the issue of restraint and seclusion in Scotland’s schools (“No Safe Place”). The investigation focused on two main issues:

  • The existence and adequacy of policies and guidance.
  • The extent to which incidents are recorded and reported at local authority level.

The investigation was undertaken from an international law perspective – primarily the UN Convention on the Rights of the Child.  But what does Scots law have to say on these thorny issues?

Crime and Punishment

We start with a history lesson.  Following the Scottish case of Campbell and Cosans v. The United Kingdom, the European Court of Human Rights determined that the use of corporal punishment in public schools was a breach of the parents’ rights to ensure that their children’s education was in accordance with their own religious and philosophical convictions.  That’s right, the case to prevent children from being physically chastised at school was decided on a parents’ rights basis, not a children’s rights one!  Obviously.

The UK and Scottish Governments have subsequently taken various steps to eliminate the use of corporal punishment from schools.  Section 16 of the Standards in Scotland’s Schools etc. Act 2000 imposes a ban on the use of corporal punishment, by removing any such defence in relation to the crime of assault.

So far, so good.  The legislation then goes on to say that anything done for reasons which include averting:

  1. an immediate danger of personal injury to; or
  2. an immediate danger to the property of any person (including the pupil themselves).

… does not count as corporal punishment.

And, that’s it.  That is basically all the law has to say about physical intervention in schools, which is to say almost nothing.  Note that the law does not say that it is okay to do these things, just that they are not corporal punishment (in case anyone was confused).  So what?

Well, corporal punishment is no longer a legal defence to charges of assault against a child (at least insofar as teachers are concerned – the defence of “reasonable chastisement” still exists in some circumstances for parents).  But actions taken to prevent injury to people or damage to property are not corporal punishment.  Which is relevant because they can amount to a defence to a charge of assault.  The law here is essentially a reminder that there is a defence of self-defence (or defence of other people – or property) in some circumstances.  This is subject to all of the usual criminal law rules about taking an opportunity to retreat where available, and ensuring that the level of force used was proportionate.

NB. Massive caveat – I have never done so much as a single day’s criminal law in my life, so my pronouncements on this should be treated with even more caution than usual!

And of course criminal law approaches to this issue mean that a criminal standard of proof applies to any prosecution (i.e. beyond reasonable doubt) – which may be problematic if relying on the evidence of younger children or children with additional support needs.

The use of restraint or seclusion in schools, perhaps as a result, is not often considered by the courts or other legal fora.

Administrative and Policy

One example relatively recently determined by the Scottish Public Services Ombudsman was Case 201607679 (The Moray Council) which is a bit of mixed bag in terms of outcome.  The SPSO determined that the act of restraint itself “was appropriate given the Council’s policy”.  However, the policy had a clear emphasis on avoiding or de-escalating a potential incident – and that staff did not act reasonably in line with their policy to stop the incident taking place.  There is a mixed message here.  The Council could have prevented the need for restraint, but as they did not do so, it was appropriate for them to use restraint against the complainer’s daughter?!

The Ombudsman also found that there had been a failure to document whether the child had sustained any injury following the incident, even though this was required by their own policy.  The Council were asked to provide evidence of the further training for staff which had taken place, and to apologise to the child and her mother.

There have also been a few (unreported) cases on this subject by the Additional Support Needs Tribunals in cases brought in terms of the Equality Act 2010.  The use of restraint or seclusion for a disabled child may amount to discrimination arising from disability (Section 15) where the education authority are unable to show that the treatment was a “proportionate means of achieving a legitimate goal”.

Again, in this context the use (or failure to use) of the correct paperwork has been of significance.  One Tribunal concluded:

There was no proper record of the use of these seclusions kept at any time by the school. Whilst the [education authority] has since devised a new policy which requires that seclusion is a risk-assessed, personalised, reported, recorded and reviewed strategy this policy was not in place when the child was secluded.  The Tribunal were unable to conclude upon what basis the seclusion was used as there are no records of its use, purpose or outcome in respect of it being used for the Child.  In the absence of these safeguards the [education authority] were unable to demonstrate to the Tribunal that the use of seclusion could be justified as proportionate to a legitimate aim in these circumstances.

That is all quite legalese, but what it is basically saying is that without the proper planning, policy and records, it will be difficult to persuade a Tribunal that the use of seclusion on disabled children has been lawful.

Overall, there are some small encouraging signs, but this is set against the backdrop of a system (educational, legal and political) which gives every appearance of valuing teachers above children.

Employees and Employments

For example, the case of Porter v. Oakbank School in 2004 which remains, to my knowledge, the only time that the issue of physical restraint in schools has been considered by the appeal courts in Scotland in terms.  This case involved a teacher at the school who fractured a pupil’s arm while trying to escort him to the “quiet room”, as he had been out of class without permission.

While accepting that an appeal decision is not going to be the best medium for getting a full sense of the facts of the case, it does seem that there was, perhaps, an incomplete understanding of the nuances involved, even allowing for the fact that this was over 15 years ago.

The judgement summarises the context as follows: “The .. school [is] for children with special educational needs. .. The school was accustomed to dealing with disruptive and unruly pupils. The staff received tuition in ‘crisis and aggression limitation and management’ (CALM), a technique for controlling violent or disorderly persons.”  This is a description with which CALM Training may take some issue!

The Court found that there was not sufficient evidence of unnecessary force in this case, and cast doubt on “whether textbook solutions were practicable in the emergency that pupil A had himself created.”  The Court upheld the earlier decision that the teacher had been unfairly dismissed by the school.

Reporting and Responding

It will therefore be interesting to see what response there is to the Commissioner’s report.

The Commissioner found that while children’s rights are referenced in many policies, they are not given meaningful expression in terms of how they should impact on practice.

There was also criticism of the Scottish Government for failing to produce a national policy to ensure consistent and lawful practice, something which groups like Positive and Active Behaviour Support Scotland (PABSS) have been calling for for years.

Several recommendations were made, including:

  1. Local authorities should, as a matter of urgency, ensure that no restraint or seclusion takes place in the absence of clear consistent policies and procedures at local authority level to govern its use.
  2. The Scottish Government should publish a rights-based national policy and guidance on restraint and seclusion in schools. Children and young people should be involved at all stages of this process to inform its development. The policy and guidance should be accompanied by promotion and awareness raising.

All those who are subject to recommendations are required to respond to the Commissioner in writing by 31 January 2019.

Exclusion and disadvantage – a warning from London

An interesting and disturbing article I cam across recently in the Guardian: “Inner London students placed in excluded pupils’ schools almost double national rate” – which reveals statistics on exclusion from within London.

London’s schools are some of the highest performing in England and Wales, following the innovative London Challenge programme – which has in turn inspired the Scottish Government’s attainment challenge.

Research in London’s schools shows that the rates of exclusion rise significantly in some London boroughs – particularly in Inner City boroughs associated with high levels of poverty and other social disadvantage.  In one area 1 in every 54 pupils were in pupil referral units for excluded children.

Kiran Gill, from the IPPR who carried out the research argues that the most vulnerable children with the most complex needs are disproportionately affected by exclusion, and London has no shortage of them.

Exclusion is correlated with multiple and overlapping layers of disadvantage.

Kiran Gill, IPPR

One of the factors identified in the article as driving the exclusions was the pressure schools feel to perform in league tables.  Is there a danger that the Scottish Government’s national standardised testing (which was this week disowned by international educational experts)could lead to similar pressures – and a similar increase in exclusions?

In reading this article, I was reminded of the presentation from Linda O’Neill and Lizzie Morton from CELCIS, speaking at the Differabled Scotland seminar on exclusions last October – highlighting the much greater rate of exclusion for looked after children, and the prevalence of informal exclusions.  A report of that seminar should be available soon, if you missed it.

You can also find out more about school exclusions in Scotland and the legal position specifically in my third newsletter, which has a focus on exclusion from school.  You can access the newsletter using mailchimp and subscribe for future editions.

Notes from the end of the year

Today was my first day back at work, which is always a bit of a difficult gear change.  It was also the first day back at school for many pupils and teachers.

I am not one for New Year’s Resolutions in general, but I do want to post to the main blog more often in 2019, so I will start as I mean to go on …

This post is a bit of a round up of a few things that I wanted to write about towards the end of last year, but didn’t get around to.  So, I will just summarise them here, with the relevant links for you.  It is possible that I will return to some of these in due course, but then again, who knows?

  • The Scottish Commission for Learning Disability released their 2018 report.  The 2018 Learning Disability Statistics Scotland provides data on adults with learning disabilities from local authorities across Scotland.  The report is provisional, as Glasgow City Council’s returns were late.
  • The Children and Young People’s Commissioner Scotland published the report “No Safe Space” following a national investigation into the use of restraint and seclusion in Scotland’s schools.  It recommended (among other things) that the Scottish Government should publish a rights-based national policy and guidance on restraint and seclusion in schools. Children and young people should be involved at all stages of this process to inform its development.
  • On a similar theme, a pupil in Yorkshire has brought legal action against his school over the use of “consequence rooms” containing booths in which children sit in silence for hours as punishment for breaking school rules.  The article in the Guardian gives the details of the case, including the Dept. for Education’s response.
  • It was reported in TESS in December that due to a variety of terms being used for support staff, there is no way of monitoring levels of staffing for pupils with additional support needs.  The article: “Have support-staff numbers dropped? Who knows?” quotes Green MSP Ross Greer as describing the term pupil support assistant as “comically generalised”.  This seemed to me to be a bit of a non-story as the idea that you can quantify number of ASN staff within a mainstream school context is counter-intuitive.  The better additional support needs are understood and supported by all staff, the fewer dedicated ASN staff will be required – so a drop in these numbers should be a good thing, right?
  • The campaign for funded nursery places for deferred pupils, Give Them Time, had a useful blog piece outlining the right to defer in Scotland: “To Defer or not to Defer?
  • The UK Supreme Court delivered a judgement about Section 15 of the Equality Act 2010 (Discrimination arising from disability) in the case of Williams v. Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65. Though not an education case, the principles apply – helpfully, the Court confirmed “the relatively low threshold of disadvantage which is sufficient to trigger the requirement to justify under this section.”
  • The Herald carried an article on Boxing Day which reported on the “Demand for radical overhaul of controversial policy on vulnerable pupils.” which quoted several sources questioning the implementation of the presumption of mainstreaming and some of the consequences thereof.  The Cabinet Secretary for Education reiterated the Government’s support for the presumption of mainstreaming.  I think most are agreed that it is not the policy which requires to be overhauled, but its funding and implementation.  (I also think the legal drafting could do with some work, but that’s another story)
  • My third newsletter hit the digital presses just before the end of term, with a focus on exclusion from school.  You can access the newsletter using mailchimp and subscribe for future editions.

And that’s it for now.  Let me know in the comments any topics you’d like to see covered here or in the newsletter.

Learning Disability Week 2018

It is Learning Disability Week 2018: a week focusing on, and celebrating, the lives and talents of people with learning disabilities in Scotland. The theme this year is “My Generation” – aiming to highlight the experiences of young people with a learning disability, and what changes can be made so that this generation can reach their goals in life.

Education is critical to creating opportunities for children with learning disabilities, and the right support and environment can make all the difference. In Scotland, Section 15 of the Standards in Scotland’s Schools etc. Act 2000 provides children with learning disabilities with the right to be educated in a mainstream school (although there are some specific exceptions) and the education system in Scotland is structured around this concept of inclusive education.

We’ve come a long way

Educating pupils with learning disabilities in Scotland has evolved considerably since the Warnock Report in 1978 – and the passing into law of the “presumption of mainstreaming” did not mark the end of the process. Far from it. Over subsequent years, there has been a progressive increase in the recognition of the rights of all pupils to have fair access to education.

The Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002 introduced the requirement for Accessibility Strategies for education authorities and independent schools, with an emphasis on:

  1. increasing the extent of participation in education;
  2. improving the physical environment of schools; and
  3. improving communication with pupils with a disability.

The revised Scottish Government guidance on Accessibility Strategies is particularly good, and well worth reading.

“..through Curriculum for Excellence, the curriculum in Scotland is recognised as the totality of experiences which are planned for children and young people through their education, wherever they are being educated. This totality includes the ethos and life of the school as a community, curriculum areas and subjects, interdisciplinary learning and opportunities for achievement.

“Disabled pupils have exactly the same curriculum entitlements as their non-disabled peers.”

Accessibility Strategies guidance (Scottish Government, 2014)

The Education (Additional Support for Learning) (Scotland) Act 2004 introduced the concept of additional support needs and aimed to modernise and strengthen the system for supporting children’s learning needs. Alongside this sits the Equality Act 2010 (replacing the Disability Discrimination Act 1995 and others) which makes disability discrimination in schools unlawful.

Importantly, the legislative framework (particularly the Equality Act 2010) aims for the inclusion of pupils with disabilities not just in the classroom, but in the playground, after-school clubs, school social events, school trips etc. Full inclusion in the whole life of the school is the aim.

“the way in which a trip is organised can lead to discrimination if, for example, the necessary reasonable adjustments are not made for a disabled pupil. A school is less likely to discriminate if it plans a trip taking into account the need to include all pupils irrespective of their protected characteristics rather than if it arranges a trip and then tries to adapt it to make it inclusive. ”
Technical Guidance for Schools in Scotland, para 3.10 (Equality & Human Rights Commission, 2014)

Has inclusion been achieved in practice?

The framework for inclusion is in place, and when supported by well-trained teachers, assistants, allied health professional and other external agencies, the benefits to the child and the whole class is manifest.

One family, providing evidence to the Education and Skills Committee in 2017 noted that they were encouraged to pursue mainstreaming for their child with Down’s Syndrome when a young friend pointed out:

“that some young people might also want to meet and help people like our daughter and this made us think of a more positive side to mainstreaming, which meant that others (staff included) might benefit and blossom meeting her”

Four years later they and their daughter have not looked back…

The opportunities now available to her, both socially and educationally, could not have been provided to the same extent had their daughter not attended mainstream school. They certainly would not have been available to her forty, or even twenty, years ago.
There are many successful inclusion stories, but there are also concerns that some children’s needs are not being met in mainstream – and an ever present suspicion that finance, and not inclusion is driving the push to mainstream.

So, what’s next?

The Education and Skills Committee’s recent investigation noted inconsistencies across education authorities and schools. The provision was better in schools whose ethos embraced inclusion and where individual teachers adopted inclusive practices as a matter of course. There was also evidence of children from advantaged backgrounds receiving better support as their parents pushed for identification, and after that the appropriate support.

Education authorities and schools need to have a consistent approach to inclusion. It should not be left to a child’s parents (although their involvement in the system is to be encouraged). In instances where mainstream school is not appropriate, this needs to be identified as early as possible – without waiting for crisis point to be reached.

Resources are always an issue, but the resources need to be spent wisely as well. My own view is that significant additional resources spent now on intensive training and awareness building for front-line teaching staff would pay dividends in the not too distant future.

Scottish Government remain committed to mainstreaming, and inclusion, but are reviewing the best way to put these principles into practice.

In their consultation, which closed for comment in February 2018, they cast light on how they intend to support authorities in this process, by introducing a newly created draft guidance for mainstreaming. According to the Scottish Government:

“This non-statutory guidance will present a vision for mainstreaming, building on the best available evidence on inclusive approaches to education. It will aim to touch upon other, complementary policies as part of a joined-up approach. The guidance has been developed to support all local authorities, all schools, and all teachers and practitioners.”

The four key principles are to:

  • Improve outcomes;
  • Meet the needs of all children and young people;
  • Support and empower children, young people and all those involved in their education; and
  • Outline an inclusive approach which identifies and addresses barriers to learning for all children.

Implementation of the presumption of mainstreaming requires a commitment to inclusive practice. The guidance links inclusive practice with the presumption throughout and includes key features of inclusion and guidance on how to improve inclusive practice in schools. While these could be more strongly worded (and may yet be revised in the final draft), I am of the view that the revised guidance will be an important stepping stone towards a truly inclusive system.

My own response to the Scottish Government consultation on the presumption of mainstreaming can be read elsewhere on this blog.

Additionally, the Scottish Government is researching inclusion in practice to get a wider understanding of the current state of play. It is hoped that the final research report will be available by the end of the summer. Both the consultation responses and the research will be used to inform the final version of the guidance and future policy development and reporting.

Online resources on inclusive education for practitioners are being developed by Education Scotland, along the same lines as the Addressing Dyslexia Toolkit.
These next steps in the journey are of critical importance and all those involved in education must strive to make sure that inclusion is not just jargon, but becomes a daily reality for pupils in every school in Scotland. Children with learning disabilities deserve no less.


I am a trustee of the Scottish Commission for Learning Disability, but this article (as with everything on this site) is a personal view.

Get involved with Learning Disability Week and let as many people as possible know about it by applying the handy Learning Disability Week themed designs from the SCLD website to your social media channels and documents.

Use #LDWeek2018 in your posts to raise awareness and help SCLD to keep all news related to the week in one place!

The Scottish Commission for Learning Disability is

ASN Tribunal launches child centered website

Perhaps anticipating a rush of applications following the recent extension of rights for 12 to 15 year old pupils, the Health and Education Chamber of the First-tier Tribunal for Scotland (Additional Support Needs) has launched its website ‘needs to learn’. And very helpful it is too.

The Additional Support Needs Tribunal is set up to adjudicate on disability discrimination claims relating to school, as well as references made under the Education (Additional Support for Learning) (Scotland) Act 2004.

In Scotland, most children over the age of 12 are deemed to have the capacity to make a disability claim directly, and not rely on their parents to do so on their behalf. For additional support needs references, the process is a bit more complex than that, involving assessment of both capacity and wellbeing. Nonetheless, most pupils aged 12-15 with additional support needs should also be in a position to access the Tribunal directly.

The recent extension of rights for this age group enables pupils to ask their school or local authority if they need extra educational support and, if they do, allows them a say in how that is provided. This places the child front and centre in their education journey.

Equipping children with the information and support required to make a claim or reference to the Tribunal is a critical part of this empowerment. The needs to learn website sets out to do just that.

The website is easy to navigate and is split into to two main sections. One providing general information and the other aiming to guide a child through the steps required to make a claim or a reference.

The information section has helpful contacts, including that of the My Rights, My Say service, that was set up by the Scottish Government at the beginning of the year, along with that of Enquire and the Equality Advisory and Support Service. Importantly this section also explains commonly used legal terms in an attempt to demystify the legal process and explains what happens once a claim or reference has been made. It also outlines all the options available to allow the child’s voice to be heard through the tribunal process.

The remaining part of the site contains practical information to help a child make an application to the tribunal, be that a claim or a reference. This is a great resource for pupils and their parents and carers alike. Even if an appeal is made by the parent on behalf of their child, then the information section will still assist in explaining the process to the child and outline all the ways in which they can participate in it.

There is a very short time limit for making an appeal to the tribunal (two months in many cases). If you think you may have been discriminated against, or are not receiving the right educational support, then please contact one of the organisations contained in the tribunal information section, or a solicitor, as soon as possible.

Mainstreaming, presumably.

The passing of the Standards in Scotland’s Schools etc. Act 2000 brought with it a statutory requirement for education authorities to provide education for all in mainstream schools unless certain exceptions applied. This is known as the “presumption of mainstreaming”.

Since then, there have been many changes in education law in Scotland. As such the legislative framework now requires education authorities to consider a wide range of issues alongside the presumption of mainstream education. When considering placements for children, authorities need to consider: the need to make provision of additional support to children and young people with additional support needs; the need to avoid discrimination (including disability discrimination) and to comply with their public sector equality duty; the need to plan for improving accessibility of all aspects of school life (Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002); and to consider the wellbeing of children and young people (Children and Young People (Scotland) Act 2014 – still to be brought into force).

The Scottish Government remain committed to a presumption of mainstreaming, and this consultation sets out draft guidance for education authorities. According to the Scottish Government:

“This non-statutory guidance will present a vision for mainstreaming, building on the best available evidence on inclusive approaches to education. It will aim to touch upon other, complementary policies as part of a joined-up approach. The guidance has been developed to support all local authorities, all schools, and all teachers and practitioners.”

The four key principles are to:

  • Improve outcomes
  • Meet the needs of all children and young people
  • Support and empower children, young people and all those involved in their education.
  • Outline an inclusive approach which identifies and addresses barriers to learning for all children.

So, does it do that?

The principles outlined above do support a wider goal of inclusion. However, the key features outlined to support these principles often fall short of promoting true inclusion. A strengthening of the wording of the expectations is required to create clear and unambiguous guidance for local authorities.

The guidance does seem to deal in generalities and overlooks the fact that decisions require to be made about an individual and their particular needs and circumstances. Mainstream education requires to be properly supported (and resourced) to ensure it is properly inclusive, while recognising that it will not be the answer for everyone.

My view is that the guidance requires to focus on the needs of the individual child in order to achieve the inclusion goals set out by the Scottish Government.

For further comments on the guidance as currently drafted, please see my full consultation response, below.

Continue reading “Mainstreaming, presumably.”

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)

Ring-fencing the changes

On 10th January 2018, amendments to the Education (Additional Support for Learning) (Scotland) Act 2004 came into force, heralding an extension of rights for Scottish teenagers, said to be unprecedented anywhere in Europe. Pupils aged between 12 and 15 now have the right to ask their school or local authority if they need extra educational support, and the right to have a say in how that is provided, advocacy to support them in expressing their views and legal representation at Tribunal should they need it.

To raise awareness and support children through this process providing advice, advocacy and legal representation, a new children’s service called ‘My Rights, My Say’ has been established. Delivery of this service will be through a partnership of Children in Scotland, Enquire, Partners in Advocacy and Cairn Legal.

This a significant development, and one which has been welcomed across the Scottish education community. Concern has been raised, however, as to how this is to be funded. With statistics published by the Scottish Government at the end of last year showing a 55% increase in pupils with additional support needs since 2012 coupled with a perceived downwards trend in investment, that concern is not surprising.

At the same time, the Scottish education system is going through a period of reform, with schools and Head Teachers to be given more freedom to make decisions at a local level. The Education (Scotland) Bill will make Head Teachers responsible for recruitment of school staff, and other budgetary decisions and deciding on curriculum content. While Councils will still have a role in education (including legal responsibility for additional support needs), newly established Regional Improvement Collaboratives will be created to ‘pool and strengthen resources to support learning and teaching in schools’.

In theory, this will provide an opportunity for schools to tailor additional support, but there is also a risk that the system becomes disjointed, and unable to respond effectively to competing demands on resources.

The current draft budget is being debated in parliament, and the question of additional support for learning funding seems to be an issue that is attracting some interest amongst MSPs. The budget contains an allocation of £10m to be provided to charities that support young people with additional support needs; is also includes £120m allocated to pupil equity funding to help raise attainment. However, the Education and Skills Committee are putting pressure on the Government to ring-fence all additional support needs funding for local authorities.

Ringfencing of additional support needs funding allows Scottish Government to control the sums spent on this area.  However, it does not guarantee that the sum ring-fenced will be sufficient to meet all of the needs within one area, nor does it control how or on what that money is spent.  Further it is not always easy to identify what funding is for additional support.  Much additional support is provided by the class teacher – how is this reflected in any ring-fencing?  Do you take a proportion of the teacher’s salary?

Whatever form the revised governance arrangements for Scottish education finally take, the issues of responsibility for additional support needs, and of funding for additional support will remain – like a fiendish Sudoku puzzle – full of numbers and difficult to solve.

Photo Credit: https://www.flickr.com/photos/01-17-05_t-m-b/2156513671