Presidential powers to refer to Scottish Ministers used for the first time

In my earlier post on the Ashdown House School Case, I mentioned in passing, the enforcement powers of the Tribunal in Scotland:

Of course, in Scotland, the President of the Health and Education Chamber has specific powers to monitor the implementation of Tribunal decisions. In the event that such decisions are not implemented, a referral to the Scottish Ministers (who have enforcement powers and mechanisms in relation to both public and independent schools) may be made.

These powers have now been used for the first time since the Additional Support Needs Tribunals for Scotland were first set up (back in 2005). In a recent disability discrimination case, the child (who was the litigant in that case) complained that the education authority in question had not complied with the orders made by the Tribunal within their decision.

Rule 12 of the First-tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 state:

Power to monitor implementation of First-tier Tribunal decisions

12. The Chamber President may, in any case where a decision of the First-tier Tribunal required an authority to do anything, keep under review the authority’s compliance with the decision and, in particular, may—

(a) require the authority to provide information about the authority’s implementation of the First-tier Tribunal decision;
(b) where the Chamber President is not satisfied that the authority is complying with the decision, refer the matter to the Scottish Ministers.

So, while it is true that the Scottish Ministers do have enforcement powers in relation to both public and independent schools, the powers of the President do seem to be limited to decisions affecting education authorities.  They would not be available where the responsible body was the proprietor of an independent school.  Apologies.  I will amend the original article to reflect this.

In this case, however, the orders were made in relation to an education authority and the President, having first considered the authority’s information provided, and thereafter allowed a short period in which to further progress compliance with the decision, considered that the authority had not complied with the decision.  She therefore took the unprecedented step of referring the matter to the Scottish Ministers.

So, what will the Scottish Ministers do now?  Section 70 of the Education (Scotland) Act 1980 and Section 27(9) to (11) of the Education (Additional Support for Learning) (Scotland) Act 2004 both give the Scottish Ministers powers to require education authorities to take certain action in relation to their functions under the 2004 Act (in the latter case) and in relation to the 1980 Act or “any other enactment relating to education” (in the former).

Given that this case was a claim (under the Equality Act 2010) and not a reference (under the 2004 Act) it seems likely that the Scottish Government will use the Section 70 route.  This now has a statutory procedure, set out in the Section 70 (Procedure) (Scotland) Regulations 2017, and would ultimately allow Scottish Ministers to declare the authority to be in default of their duties, and to require them to take specified action to remedy that default.

Given that there is the possibility for this process to be used in relation to most Tribunal decisions, those drafting orders should bear in mind the need for any requirements to be clear and specific – it should be obvious whether a decision has been complied with or not.  Orders should also, in appropriate cases, come with time limits.  Otherwise it can be difficult to know when a delay (or even an ongoing process) might be viewed as a failure to comply.

This is a significant development, and a reminder to claimants and appellants with a decision in their favour that there is a way in which the implementation of the decision can be monitored and – if necessary – enforced.

IPSEA Manifesto 2019

It will not have escaped your attention that there is a UK General Election campaign underway at the moment.  IPSEA (Independent Provider of Special Education Advice) have released a manifesto asking the next Government to address a “SEND system in crisis”.  SEND is an acronym for Special Educational Needs and Disability.

Now, IPSEA is an organisation which does not operate in Scotland, and education is a devolved issue, so this is not directly relevant to the situation north of the border.  The education system and the ASL framework in particular has significant differences.  However, it remains of interest to see what the position is like elsewhere in the UK, and to compare that to the Scottish situation, in relation to each of IPSEA’s 7 “asks”.

1. A robust system of accountability so that local authorities know there are serious consequences if they flout the law.

The complaint here is that SEN law seems to be disregarded with few consequences for local authorities.  In Scotland, there are fairly well developed and reasonably accessible mechanisms for dispute resolution and for putting right things which have gone wrong at the time they do.  It is far less straightforward to seek restitution for things which have happened in the past (even in the relatively recent past).

IPSEA mention the ability of a family to pursue a complaint to the Local Government and Social Care Ombudsman (LGSCO) – and indeed there are examples of compensation being recommended by the Ombudsman in SEND cases.

In Scotland, the Scottish Public Services Ombudsman (SPSO) generally refuses complaints related to additional support needs, as these should be dealt with by the Tribunal or other statutory mechanism instead.  It can, in theory, recommend compensation, but basically doesn’t.  Professional negligence claims in education cases are difficult legally, and vanishingly rare.  All in all, it remains the case (as IPSEA state) “so much of the burden is placed on parents when things go wrong”.

One “simple fix” would be to give disabled pupils facing discrimination at school the right to seek compensation (including damages for “injury to feelings”) in the same way that disabled persons facing discrimination in any other field can do, and that pupils facing any other form of discrimination can do.  This would require the amendment of the Equality Act 2010, so it is a matter for the UK Government, and therefore this election, even in relation to Scotland.

Why is it – uniquely among victims of unlawful discrimination – that disabled school pupils are prevented from seeking compensation for the wrongs done to them?

2. Better joined up working across education, health and social care, particularly during the EHC needs assessment process.

There is no doubt that this is an issue in Scotland as well.  A Co-ordinated Support Plan is required only where there is a need for co-ordination of support, but it can often be difficult to get “appropriate agencies” to contribute, attend meetings etc.

Is there an opportunity for a revised, statutory Child’s Plan scheme (freed from the shackles of the Named Person debacle) to facilitate this joined up working for children and young people with additional support needs?

3. Mandatory SEND law training for all those involved in assessing and meeting the needs of children and young people with SEND.  The national qualification for SENCOs should also include a module on the SEND law framework.

I am a lawyer, and often deliver ASL law training to those involved in assessing and meeting the needs of children and young people with additional support needs.  So, I clearly think it has its place – I would probably say that it’s not anyone’s top priority though.

The SQA recognise and certify HNC and HND courses in Additional Support Needs. While the HNC is described thus, “Candidates may work or wish to work as an assistant within a mainstream or specialised school”, there is no national or required qualification for Support for Learning Assistants in Scotland.

4. The extended powers of the SEND Tribunal currently being trialed under the national trial for a single route of redress should be made permanent, but also strengthened so that the Tribunal can make binding orders in relation o children and young people’s health and social care needs and provision.

SEND Tribunals are currently in the midst of a two-year national trial.  During this time (April 2018 to March 2020), SEND Tribunals can make non-binding recommendations on:

  • the health and social care needs specified in EHC plans;
  • the health and social care provision specified in EHC plans related to the learning
    difficulties or disabilities that result in the child or young person having SEN; and/or
  • the social care provision specified in EHC plans that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.

There are no current plans to confer similar powers on the First-tier Tribunal for Scotland (Health and Education Chamber), even on a trial basis.  Perhaps the assessment of the trial period in England will prompt consideration of extended powers in Scotland, too.

5. Stronger guidance on SEN Support to ensure there is clarity over how children should be supported at this level and what good quality SEN Support looks like.

It is a difficult task to describe “what good quality SEN Support” looks like as it is, inevitably, going to vary from child to child, even where children share a diagnosis.  “Supporting Children’s Learning”, the Code of Practice in Scotland, is being revised at the moment, and already contains some very useful examples illustrating the variety of approaches needed to meet the diversity of needs encompassed by the broad term “additional support needs”.

6. The jurisdiction of the LGSCO should be extended to enable it to investigate complaints about schools who fail to deliver SEN Support.

In Scotland, I feel that the process of independent adjudication effectively fills this role.  Regular visitors to the blog will know that I am a fan of this system.  The main problem is a simple lack of awareness.

7. Adequate funding to ensure that all children and young people with SEND receive the support they need to meet their individual needs whether that’s under SEN Support or through an Education, Health and Care plan.

It’s hard to argue with a call for “adequate funding” – agreeing what level of funding is actually adequate is another question.  One point to note is that any additional funding for SEN Support in England would, in terms of the “Barnett consequentials“, result in a corresponding increase in the Scottish budget, though it would be for the Scottish Government (or potentially Scottish local authorities) to decide whether or not any such increase would go to additional support for learning.

Scottish Parliamentary elections are due to take place in 2021.  Perhaps organisations working across the additional support needs sector in Scotland should even now be thinking about a similar manifesto?

Mainstreaming, I presume … (Part 1)

In March of this year, the Scottish Government published revised guidance on the presumption of mainstreaming.  It is now November, and I have not yet blogged about it (although I did post my consultation response on the draft revised guidance).  I think my inaction may be due to the size of the task, so I have decided to break it down into smaller chunks, and deal with it a bit at a time.

The Legislation

We’ll start with what the law says about this.  Introduced as an amendment during the passage of the Standards in Scotland’s Schools etc. Act 2000, the ‘presumption of mainstreaming’ is found in Section 15 of that Act.

The phrase ‘presumption of mainstreaming’ is an odd one to start with.  It is not used in the legislation at all.  The crossheading used in the Act is “Requirement for mainstream education” and the section heading is “Requirement that education be provided in mainstream schools”.  In legal terms, there is no such thing as a mainstream school, and so the section itself, as we will see, takes the form of a prohibition on providing education in special schools (with some exceptions).

Interestingly, the guidance itself takes a slightly different title: “Guidance on the presumption to provide education in a mainstream setting“.  So, for the same single section we have: mainstream education, mainstream schools and mainstream setting.  What the difference is between these three, if any, is not clear.

The Section itself says this:

15 Requirement that education be provided in mainstream schools

(1) Where an education authority, in carrying out their duty to provide school education to a child of school age, provide that education in a school, they shall unless one of the circumstances mentioned in subsection (3) below arises in relation to the child provide it in a school other than a special school.

(2) If a child is under school age, then unless one of the circumstances mentioned in subsection (3) below arises in relation to the child, an education authority shall, where they—
(a) provide school education in a school to the child, provide it in; or
(b) under section 35 of this Act, enter into arrangements for the provision of school education in a school to the child, ensure that the arrangements are such that the education is provided in, a school other than a special school.

(3) The circumstances are, that to provide education for the child in a school other than a special school—
(a) would not be suited to the ability or aptitude of the child;
(b) would be incompatible with the provision of efficient education for the children with whom the child would be educated; or
(c) would result in unreasonable public expenditure being incurred which would not ordinarily be incurred,and it shall be presumed that those circumstances arise only exceptionally.

(4) If one of the circumstances mentioned in subsection (3) above arises, the authority may provide education for the child in question in a school other than a special school; but they shall not do so without taking into account the views of the child and of the child’s parents in that regard.

The legislation is fairly clear on its expectations, and it is fair (to my mind) to describe this as amounting to a ‘presumption’ of mainstreaming.

One interesting quirk of all of this is that the Education (Additional Support for Learning) (Scotland) Act 2004 – which postdated this legislation coming into force – changed the definition of “special school” – which effectively changed the scope of this duty.

Section 29(1) of the 2004 Act, defines ‘special school’ as

(a) a school, or

(b) any class or other unit forming part of a public school which is not itself a special school,

the sole or main purpose of which is to provide education specially suited to the additional support needs of children or young persons selected for attendance at the school, class or (as the case may be) unit by reason of those needs.

So a pupil who attends a Language and Communication Unit (for example) which sits within a mainstream school, is not being educated in a mainstream setting or receiving a mainstream education, according to the Act – regardless of how many opportunities for joining in activities with mainstream peers may be offered.

The Act also does not address situations in which there may be a split placement.  Is a pupil who attends a mainstream school part-time and a special school part-time being educated in accordance with this statutory requirement, or not?

Finally, the presumption of mainstreaming appears as a ground of refusal in the legislation concerning placing requests (Schedule 2 of the 2004 Act).  Ground for refusal 3(1)(g) applies where the ‘specified school’ (i.e. the one requested by the parent)  is a special school, if placing the child in the school would “breach the requirement in section 15(1) of the 2000 Act”.

As set out in the recent Upper Tribunal case of Midlothian Council v. PD, this effectively means that, for a parent to be successful in a placing request for a special school, they will have to show that one or more of the exceptions ( a to c, above) applies.

That more or less covers the legislation.  Next up … Inclusion and the presumption.

Image by Gerd Altmann from Pixabay

Children's Rights, Inclusion, Equality

A complex additional support needs strategy (overview)

The Scottish Government recently published “The Right Help at the Right time in the right place” – Scotland’s Ten Year Strategy for the Learning Provision for Children and Young People with Complex Additional Support Needs.

The Ten Years in question are 2017-2026, with the commencement of the strategy being taken as the date that a draft was published for consultation – which is an interesting approach!

There is no separate legal definition of the term “complex additional support needs” and (perhaps wisely) this strategy does not attempt to come up with a definition of its own.  Instead, there is a “working description” outlined on p9, which includes:

  1. children and young people with a Co-ordinated Support Plan (CSP);
  2. children and young people at stage 3 or 4 of an education authority’s staged intervention model;
  3. children or young people who attend a grant-aided or independent special school.

It is also worth noting the descending capitals in the title, with “Right Help” being followed by “Right time” before finally giving way to the “right place”.  Does this imply an order or priority or importance?  Or, am I reading too much into things?

Context for the strategy

This strategy fits within the Scottish vision for inclusive education, which reads:

Inclusive education in Scotland starts from the belief that education is a human right and the foundation for a more just society. An inclusive approach which recognises diversity and holds the ambition that all children and young people are enabled to achieve to their potential is the cornerstone to achieve equity and excellence in education for all of our children and young people.

Inclusive practice is defined by reference to four key features of inclusion:

  • Present;
  • Participating;
  • Achieving;
  • Supported

You’ll recognise these from the revised guidance on the presumption of mainstreaming.

The big question behind all of this is funding.  Specifically £11 million.  Which is what the Scottish Government currently spends on the grant-aided schools (Harmeny, East Park, Royal Blind School, Donaldson’s, Corseford, Stanmore House, and the Scottish Centre for Children with Motor Impairments (SCCMI)) and three national services (Enquire, CALL Scotland and the Scottish Sensory Centre).

The strategy is all about commissioning services, and seeks in particular to ensure that “the impact of any service commissioned results in capacity building across local authorities as well as at  national level,”.  This suggest a move away from funding schools, and towards funding research, professional development and outreach services.

Next Steps

To sit alongside this document, an Operational Commissioning Strategy is being prepared.  This will complement the Ten Year strategy, and is to be published  “in late 2019”.

The Commissioning process will have heavy involvement from the third sector who – it is anticipated – will take a lead in applying for funding and delivering services.  Other organisations or partnerships may also apply for funding.  Any change to the current funding arrangement will be introduced in such a way that it will not prejudice placements of children and young persons already support by the existing recipients of funding.

As I mentioned earlier, professional development may well be a key plank of this strategy as it is implemented.  Indeed, the strategy states that “By 2026 there should be a well-established national leadership programme at post-graduate level, which addresses the requirements of effective leadership in the context of schools and services for children and young people with complex additional support needs.”

Parental engagement

Parental engagement is also mentioned throughout the strategy.  A new resource “Supporting Disabled Children, Young People and their Families” was put out for consultation in April 2018, and highlights good practice on rights and information, accessibility of support, and transitions.

The Scottish Schools (Parental Involvement) Act 2006 places a specific duty on local authorities to consider how their parental involvement strategies make provision for parents of children with complex additional support need.  The Scottish Government will include specific guidance on this point as part of refreshed national guidance on parental involvement.

Children’s Rights

The strategy also makes passing reference to children’s rights, and expresses a desire that a positive culture, in which children are welcomed, nurtured, listened to, and have their views heard and their rights protected, is promoted in Scotland.

The changes to the Education (Additional Support for Learning) (Scotland) Act 2004 for children aged 12-15 is highlighted, as is the children’s support service, My Rights, My Say.

A version of the strategy which is accessible for children and families will be made available in “late 2018”.

Transition Period

The proposal here is for a “phased release of funding from the current commitments”, with the grant-aided special schools potentially having to adapt to a new funding landscape in which they access funding on a different basis – or not at all.

An evaluation framework for the strategy is to be developed, with annual reporting against that framework from 2021.

Conclusion

Much detail still to follow, including the Operational Commissioning  Strategy and the practice of education authorities in commissioning in future.  Whether this will have an impact of statutory placing requests, or planning documents, for example, will remain to be seen.

Belt up in the back!

Back to school, and the return of the school run.  For many children this will mean travelling in vehicles (usually buses or taxis) arranged for them by the school or education authority.

This school year marks the beginning of the requirement for the publication of annual seatbelts statements.  As of 1 August 2019 (or as soon as reasonably practicable thereafter) each school authority (i.e. education authority, proprietor of an independent school, or managers of a grant-aided school) must publish a seatbelts statement. This sets out what steps the authority has taken to comply with the seatbelts duty and to promote and to assess the wearing of seat belts by pupils carried by the authority’s dedicated school transport services.

The principal duty, which has been in force since 1 August 2018 for new school transport contracts, and will apply from 1 August 2021 for any remaining existing school transport contracts is as follows:

A school authority must ensure that each motor vehicle which the authority provides or arranges to be provided for a dedicated school transport service has a seat belt fitted to each passenger seat.

Section 1, Seat Belts on School Transport (Scotland) Act 2017

This covers both home/school transport and transport used for school trips, sporting events, residentials etc.

The Scottish Government has published guidance for schools: Seat Belts on School Transport (Scotland) Act 2017 – Guidance – which includes a template for the annual seat belt statement.

Of course, pupils with additional support needs make up a goodly proportion of those requiring school transport.  The guidance notes that:

Some pupils travelling on dedicated school transport may need specialist provision, such as smaller children needing a height-adjustable seatbelt, adjustable straps, lap belts, or adaptations which are required because a young person has Additional Support Needs. The Scottish Government recognises that school authorities, particularly local authorities, are better placed to conduct needs assessments in line with their existing obligations regarding education provision more generally and to make provision or enter into contractual arrangements to allow for this.

There’s not much in the guidance on this topic (in fact, it’s basically just this) but there are two assumptions which seem to run through this paragraph.  First, school authorities should conduct needs assessments in relation to adaptations required for pupils with additional support needs to use school transport.  Second, those adaptations should be made (either directly, or by ensuring that any contract for transport requires them to be made).  This is broadly in line with the reasonable adjustments duty for disabled pupils under the Equality Act 2010.

 

Incorporating Children’s Rights (Consultation Response)

The Scottish Government is committed to enshrining the United Nations Convention on the Rights of the Child (UNCRC) into the domestic law of Scotland. The overall aim is to ensure that all policy, law and decision-making in Scotland takes into account children’s rights and empowers children and young people to know and understand their rights – asserting and defending them where that is needed.

This commitment is great news in principle, but how it will be incorporated into the law of Scotland is a detail that has not yet been resolved. Wholesale legislative change? Or piecemeal changes to domestic legislation ? The Scottish Government have put this question – and other implementation issues – out to Consultation.

It will come as no surprise to regular readers that my preference is for the most comprehensive incorporation possible. My response supports full incorporation of the UN Convention into law by drawing on the mechanisms used to embed the European Convention of Human Rights into UK law (and the model adopted by the Equality Act 2010 in relation to the public sector equality duty). By combining the two approaches, public authorities would be explicitly prohibited from acting in a way which is contrary to the UN Convention and breaches could be challenged in the Courts.

My response to the consultation is reproduced (with some editing for readability) below.

Continue reading “Incorporating Children’s Rights (Consultation Response)”

Included, Engaged and Involved Part 1

New Attendance Guidance – is it any good?

Last week the Scottish Government published revised guidance on school attendance.

The guidance is called Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools.  As the name suggests, there is an immediate link being made here with school exclusion – Part 2 of the “Included, Engaged and Involved” is the exclusions guidance (which is, by and large, very good).  Anyone who has read the Not Included, Not Engaged, Not Involved research will know the very real overlaps between non-attendance at school and informal exclusions from school for disabled pupils / pupils with additional support needs.

I come across issues of attendance and non-attendance in my capacity as a solicitor and also as a member of a local attendance council for a Scottish local authority.  More often in the first capacity, the situation is that a child with additional support needs is “not coping” with school and this is manifesting itself in behaviour which makes it not safe for them to attend, or in a refusal to attend school – often expressed in very definite terms.

Note already the terminology used – it is the child who is not coping, rather than the school environment (say) or teacher practice (for example) which requires amendment.

Pupils with additional support needs have a lower rate of attendance than pupils with no additional support needs, with the difference being particularly stark in mainstream secondary schools (88.6% compared to 92.1%) 2017 stats.  Given this known disparity, it is disappointing that the section on Additional Support for Learning occupies half of one page (in a fifty page document).  There are four paragraphs, three of which explain what additional support needs means as a term and a little bit about Co-ordinated Support Plans.

The other paragraph, however, does sort of get to the heart of matters (in all fairness):

Providing additional support may help children and young people to engage more fully with school and promote good attendance. Schools should recognise that poor attendance can often be related to, or be an indication of, an additional support need and they should use their staged intervention processes to ensure that any barriers to learning are identified and appropriate support is provided.

My concern is that this gets lost in a document which has much more to say about the traditional means of responding to absence: work being sent home; attendance orders; references to the children’s panel; and prosecution of the parents of the absent child (five pages devoted to the “Measures for compulsory compliance” appendix!).  None of which is helpful or effective in relation to a child whose autism means that they are unable to function effectively (let alone learn) in the busy environment of a large mainstream school.  These systems were set up decades ago to deal with truancy and are ill-suited to other purposes.  Further, once you are in the enforcement process, it is difficult to get out.

Fortunately, the Tribunals – and the Court of Session, in the 2018 Inner House case of City of Edinburgh Council v. R, may take a more considered view of this type of case.  The case deals with some fairly technical matters under the Equality Act 2010, but ultimately has no difficulty with the Tribunal’s finding that a CSP for a disabled child refusing to attend school (for reasons arising from that disability) which basically says the school can do nothing until the child attends school – was inadequate, detrimental and discriminatory.

 

Changing places consultation

Accessible toilets or “disabled toilets” do not necessarily meet the needs of all people with a disability.

People with profound and multiple learning disabilities, as well people with other physical disabilities such as spinal injuries, muscular dystrophy and multiple sclerosis may need the additional equipment and space afforded by a Changing Places toilet in order to be able to use the toilets safely and comfortably.  This post from the Quinns, Trains and Cerebral Palsy blog explains things much better than I can.  And this one…

It can, however, be difficult to find a Changing Places toilet.  A growing campaign, led by the Changing Places Consortium is calling for  for Changing Places toilets to be installed in all large public places.

The Scottish Government has just launched a consultation on building standards for changing places.  The proposal is

The proposal is to require Changing Places, through building standards, in certain types of larger new buildings.  Such regulations would go some way to increase the provision nationally, albeit over a period of time.

It is a welcome step, and the detail of the regulation will be important.  For example, the consultation at present only includes secondary schools, and only where community facilities are also provided by that school.  This is a missed opportunity, and consideration should be given to widening the requirement to include all secondary schools, special schools and primary schools (perhaps subject to a minimum size).

While this is not an educational piece of legislation, schools are already exempt from the second requirement of the reasonable adjustments duty under the Equality Act 2010, which might otherwise have required such changes in existing buildings, depending on the various factors which might be at play (including cost).  Most education authorities’ Accessibility Strategies are not so ambitious as to include major works on things like Changing Places toilets.  And, of course, many new build schools have opened in recent years, pre-dating these regulations.

The presumption of mainstreaming and inclusion for all pupils requires that all pupils can access safe and suitable toilet facilities at school.

The consultation runs until 13 May 2019.  Please read it, and respond – and encourage others to do so as well.

 

 

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.

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.