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)

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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

The right help at the right time in the right place – consultation response

“Scotland’s Strategy for the Learning Provision for Children and Young People with Complex Additional Support Needs 2017-20206 aims to support improved outcomes for children and young people with complex additional support needs through strategic commissioning of national services; with particular focus on the provision of education. This strategy is based on recommendations made in the Doran Review published in November 2012. While this strategy also recognises the critical role played by social services and health in supporting educational outcomes, the strategy is set within the context of The Additional Support for Learning Act 2004.”

The consultation document sought responses to the proposed strategy for children and young people with complex additional support needs.  Below is my response to the consultation.

Responses are sought to this consultation document. I have prepared some comments based on my knowledge and experience of providing legal representation for the families of children and young people with complex additional support needs.

On page 4, I would suggest using the full title of the Act, i.e. “the Education (Additional Support for Learning) (Scotland) Act 2004”.

On page 6, the relevant Act for the criteria for a CSP is the Education (Additional Support for Learning) (Scotland) Act 2004, not the 2009 Act.

On p7, the Doran Review specifies an aspiration that services are delivered, where possible, “within the home community” (this is mirrored on p10 – “locally provided”).

The benefits to the child of having services delivered within their community will be many. However, care must be taken that this terminology is not seen as a reason to avoid choosing an out of authority placement for a child who would benefit from that service. It would be useful to set out what is meant by “locally” and “home community” and to stress that it is not shorthand for the specified area of the education authority in question. I have witnessed the argument being made that a child would benefit from being educated in their local community, when the local authority provision in question is many miles from their home. For a child living in Spean Bridge, Inverness is no more their “home community” than Glasgow is.

The Doran Review also specifies an aspiration that services are inclusive (and again on p10). No-one would argue that inclusion is not of benefit to the child. However, care must be taken that the term inclusion or inclusive does not become shorthand for mainstream school. While the presumption of mainstreaming is legally defined in very mechanical terms, of much more importance is the quality of the experience for the child at the provision in question and how that is perceived. How included does the child feel? How inclusive is the school experience for the child and their family?

A child attending a residential special school away from home may experience that as a wholly inclusive setting, whereas a disabled child attending a mainstream school where she is not permitted to attend school trips and is not selected for the sports teams may find that placement to be the opposite of inclusive. The child’s views should be central to this question.

On page 8, the document states “The decision as to the most appropriate interventions and placement lies with the home education authority ..” But should it rest there? There are problems with the current set-up in which the authority determines the child’s placement, unless overruled by a placing request on appeal.

In my opinion, the ideal would be for a system which successfully places at the nationally funded special schools only those children who need it most / would derive most benefit from that placement.

There is a danger with the current arrangements that children are instead placed at such schools for other reasons, for example:
• because their parents are more persuasive, articulate or knowledgeable than those of other children;
• because their parents’ representatives are skilled in making appeals to the education appeal committee or Additional Support Needs Tribunals as the case may be;
• because with the central funding available, the school is cheaper than more appropriate placements in other authority areas / independent sector;
• because the child or family is at crisis point and suitable social work support is not available, the child being placed for respite reasons, rather than educational ones.

A better system, in my view, would be to nationally fund the GASS schools (not necessarily the same ones as at present) in full to provide specialist places for a defined number of children with particular types of complex / severe additional support needs (as determined by the National Strategic Commissioning Group).

The schools themselves, as centres of excellence in their respective fields, would then be able to select the pupils who would most benefit from the places. Without a shortage of places, there would be no disincentive to transition back to the authority’s own schools. With no financial penalty for doing so, authorities would be free to recommend places for children suited for placement based solely on the child’s additional support needs and wellbeing.

Such a system also removes the need for an expensive, time consuming and stressful dispute resolution process which can damage working relationships and take up valuable resources (time, money, energy) which could otherwise be directed by authorities and parents alike to supporting positive outcomes for the child in question.
The Scottish Government already provides 100% capital and revenue funding for one mainstream grant-aided school (Jordanhill School) and there is no reason why it could not do so with (selected) grant-aided special schools. It would be simple to achieve, would not require any legislative changes, and provides savings elsewhere in the system.

In the first instance this could be piloted in relation to a small number of schools or even a single school.

Also of interest in this context are the proposed changes to the structure of Scottish education under the Scottish Government’s governance review. If the education authority are to remain responsible for additional support needs (cf. http://www.gov.scot/Publications/2017/06/6880/11) while schools acquire new autonomy for the delivery of education and responsibility for closing the attainment gap – then the current system where the authority is basically tied to offering places in its own schools in all but the most extreme cases could be modified.

Does an education authority, responsible for meeting a child’s additional support needs need to be tied to schools in a given area, if all such schools are acting autonomously?

Perhaps an education authority should be given the broader choice of “purchasing” a suitable placement for a child with complex additional support needs, whether that happens to be at a public school, an independent school or a grant-aided school.

On page 10, the Legislative and Policy Context, bullet point 1 should read “Education (Additional Support for Learning) (Scotland) Act 2004”, and bullet point 5 should read “Children and Young People (Scotland) Act 2014”.

Page 11 mentions a “3 year cyclical commissioning plan” which would allow alignment with education authorities’ accessibility strategies and other planning duties.

Page 12 notes the need for “proactive collaborative working” – but the current system does lead to disputes – better collaboration between grant-aided schools and authorities would be of benefit to pupils, but can be difficult to achieve on the back of a process in which parties are led to criticise the other’s provision.

Page 13 talks about the development of relevant professional learning opportunities, but there is a strong case for professional learning requirements. The Requirements for Teachers (Scotland) Regulations 2005 currently require suitable qualifications for those working wholly or mainly with pupils with a visual impairment, a hearing impairment, or a dual sensory impairment. Why is there no equivalent requirement for, say, those working with pupils who have an autistic spectrum disorder?

On page 14, the need for a strong partnership between parents and providers is noted. It can be difficult to engage with parents for special schools as there are often much larger catchment area, parents with additional caring responsibilities etc. Could the Scottish Schools (Parental Involvement) Act 2006 be extended to include grant-aided special schools, or guidance issued on adopting the same system on a non-statutory basis (which could be made a condition of funding)?

I would also observe that there is a need to maintain strong and ongoing local authority engagement where placements are made at grant-aided special schools, particularly in relation to educational psychology services and at the post-school transition stages.

Iain Nisbet
Education Law Consultant

 

Photo credit: (U.S. Air Force photo by Airman 1st Class Jeremy L. Mosier/Released)

http://www.mountainhome.af.mil/News/Article-Display/Article/665693/can-we-take-care-of-you/

Excluded from school – what next?

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

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

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

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

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

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

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

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

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

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

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

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

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

Religious observance in special schools

As you may have read elsewhere, the Humanist Society of Scotland are bringing a judicial review against the Scottish Government’s decision not to review the law in relation to religious observance in schools.  At present, the law affords an opt-out for parents, but not for children.

Links:

Following on from recommendations from the UN Committee on the Rights of the Child at the last UK “inspection”, the Humanist Society called upon the Scottish Government to review the law to allow older children to take their own decision.  The Scottish Government have refused, stating:

“There is no equivalent statutory right to withdraw afforded to children and young people. However many schools will find it helpful and sensible to include young people in any discussions about opting out, ensuring their wishes are aired.”

My own views on this are already on record elsewhere, and have been for some time:

“The right to withdraw from religious instruction or observance is given to the parent of a pupil, rather than to the pupil themselves. In light of more recent legislation, including the Human Rights Act 1998 (cf. art.9: freedom of thought, conscience and religion) and the Equality Act 2010, schools should also have regard to the views of the child in relation to such matters.”

And what does the law actually say?  It can be found in three main places, which is not always appreciated.  As always the legislation is written as if all children have only one parent (or two who always agree on everything) – there is no rule for what happens if parents disagree about religious observance!

First, Section 9 of the Education (Scotland) Act 1980 sets out the basic rule, under the section heading “Conscience clause”, which is to the effect that the parent of a pupil at a public school has the right to withdraw them from “any instruction in religious subjects” and “any religious observance” in any public school or grant-aided school.  Interestingly, the term “pupil” is used here, rather than child – so the right remains with parents in relation to pupils even after they have turned 16.  Remember also that this is a right to withdraw, not a right to ensure participation.  Arguably – and this may indeed be what the Scottish Government end up arguing – a child or young person who wishes to withdraw from religious observance could insist on other rights (the Human Rights Act 1998 or Scotland Act 1998 in terms of their Article 9 rights) to achieve that result.  There is nothing in this preventing the school from granting such a request.

The children’s rights issue arising from Section 9 would be where a pupil wishes to participate in religious observance – and is prevented from doing so by reason of a parent’s withdrawal request.  An interesting cause for the Humanist Society to be taking up!

Section 10 of the Education (Scotland) Act 1980 (“Safeguards for religious beliefs”) applies to pupils who board at a residential school (or at a hostel for educational purposes).  This affords parents the right to insist on the child being permitted to attend worship, receive religious instruction and participate in religious observance in accordance with the tenets of their parents’ religion.  There is no equivalent to this for the child, but again the duty on the school is to permit the child to do these things (outside school hours and not incurring unreasonable costs) – there is no requirement to compel the pupil to take part.  Nor is there anything preventing the school from allowing the pupil to participate in worship in relation to their own religious beliefs (if they differ from those of their parents).

Finally, Regulation 12(3) of the Schools (General) Regulations 1975 applies to pupils at a special school (includes a special unit within a mainstream school).  This ensures that no education authority may compel a pupil to attend religious observance or receive religious instruction against the wishes of their parents.  Further, it requires the authority to give the parent an opportunity to express their wishes – a requirement not present in the other sections.  Again, the children’s rights issue which may arise is that of a child who wishes to attend religious observance – although this could be permitted, so long as it is not compelled!

The law is no doubt in need of revision – even the terminology barely fits modern educational practice – particularly in non-denominational schools.  However, the Scottish Government’s position is that the law does comply with pupils’ Convention Rights (when read with the guidance and Curriculum for Excellence).  Given the nature of the duties set out above, this may just be correct – although there may be a question mark over how well schools understand this.  If there is an area where the law may breach a pupil’s Convention rights it is for the child who wishes to attend religious observance, but is prevented from doing so because of their parent’s decision to withdraw them.