New Scottish Government guidance for schools on Gender Based Violence

On By Iain NisbetIn Bullying, Equality Act 2010, Getting It Right For Every Child, Pupil Welfare / WellbeingLeave a comment

Friday 8 March 2024 is International Women’s Day. Presumably to co-incide with this, the Scottish Government have released “Preventing and Responding to Gender Based Violence: A Whole School Framework“. It is noteworthy that the Scottish Government describe the document as a framework, rather than as guidance. However, the document does say that one of its purposes is “providing guidance to support schools’ responses to GBV experienced, or carried out by, children and young people or other members of the school community, including staff”. How well it succeeds in this aim may be the subject of debate, as we shall see.

Children’s Rights

The framework is set in the context of children’s rights (as it should be) and in particular references the right to protection from violence (Article 19, UNCRC) and the right to an education which develops respect for others’ human rights (Article 29, UNCRC). Of particular relevance here, for those looking for some additional reading, is General Comment 18 of the Committee on the Rights of the Child on harmful practices (issued jointly with the Committee on the Elimination of Discrimination against Women).

Gender Based Violence is defined as “any form of violence used to establish, enforce or perpetuate gender inequalities and keep in place gendered orders” and thus includes violence against women and girls, but also homophobic and transphobic violence. The framework notes that Gender Based Violence can take many forms, including:

  • physical, sexual, emotional, verbal or psychological abuse and violence;
  • domestic abuse or relationship abuse (including coercive control);
  • rape, incest or unwanted touching;
  • non-consensual sharing of sexual images;
  • sexual harassment or intimidation (including online);
  • commercial sexual exploitation;
  • “honour based” violence, including female genital mutilation and forced or child marriage;
  • transphobic, homophobic or biphobic bullying.

Disability

There is a mention of intersectionality and, within that section, specific mention of pupils with disabilities. The framework notes “Violence targeted at disabled girls may include abuse targeted at their disability as well as misogyny, and they may also encounter additional barriers to accessing support.” To this I would add that pupils with disabilities may be particularly vulnerable to abuse due to their disability, particularly where assistance with personal care is required, and may experience difficulties in communicating instances of violence or abuse to appropriate bodies where there are communication difficulties.

A whole school approach

The framework describes itself as a “Whole School Framework” and espouses a whole-school approach to addressing Gender Based Violence. This is seen as encompassing:

  • universal approaches – e.g. challenging gender stereotypes and roles, changing the language and practices that support gender inequality, and curricular input
  • targeted action – e.g. responding to patterns of incidents or unacceptable attitudes / behaviours which are not directed towards an individual
  • targeted action – e.g. responding to incidents involving individuals, wellbeing assessments and meeting individual needs
  • specialist action – e.g. child protection procedures

The aim is to “positively influence school culture by fostering a shared, consistent approach tackling the underlying gender inequalities that underpin Gender Based Violence”.

From the outset the framework is clear that “If there is a risk of significant harm to the child or young person, school staff should always invoke child protection procedures, rather than seeking multi-agency voluntary support.” The dividing line between Gender Based Violence that involves a risk of significant harm, and Gender Based Violence that does not, is less clear.

Among the key features of a universal approach is this: “All school policies should actively promote gender equality. The prevention of Gender Based Violence will intersect with all areas of school life, such as uniform policy or subject choices.” Indeed, the recent consultation on school uniform included the principle that national school uniform policy should promote “equality, including recognising specific matters relating to religion and belief, disability, sex and gender.”

The one clear recommendation which comes through here (as it does elsewhere in the framework), which should be top of schools’ “to do” lists would be to ensure that you have a Gender Based Violence policy (or a Gender Based Violence section within your existing behaviour and relationships policy). The policy (or section) should “provide specific information about how [the school] will manage instances of Gender Based Violence and support all those involved”. Regrettably, there is little in terms of specific guidance on what such a policy should contain. An example policy, or a style with headings and prompts would have been extremely useful – and is sadly lacking.

Preventing Gender Based Violence

The section on preventing Gender Based Violence is at some length and is probably where the framework is at its strongest. It includes plenty of links to resources which a school could use as part of a strategy to address gender inequality. The key tools here are seen as:

  • school culture and ethos;
  • policies and systems;
  • professional learning and development; and
  • curriculum.

Schools are urged to consider, for example, “whether the rules on school uniform reinforce gender stereotypes or place undue restrictions on girls and young women, and whether girls and young women have equal access to sports activities, play and resources.” The framework goes further, noting that ensuring equal access to sports may require “protecting time slots for girls to use equipment or spaces”.

In terms of the curriculum, there are some specific suggestions on how to promote gender equality across the curriculum, including:

  • taking a non-gendered and inclusive approach to PE;
  • discussing gender stereotypes in texts;
  • asking whose voice has not been heard in novels;
  • learning about feminism and women’s rights in social subjects;
  • learning about a diverse range of women artists / scientists as well as “their often more famous white men counterparts”.

The framework also includes a list of suggestions from primary school pupils, which include “more opportunities for girls to play football and boys to play netball”, “maths questions shouldn’t say girls do skipping and boys kick a ball” and “uniforms should be .. equally enforced” – all of which is absolutely fair enough. As a side note, I did play netball at primary school (Goal Defence, if you’re interested)!

The framework encourages a trauma-informed approach to all of this, which includes making sure that “children and young people know what will happen if they make a disclosure relating to Gender Based Violence”. However, the framework itself is not really clear (in my view) about that. It does specify that child protection procedures should be followed in some cases – but not really what should happen if those procedures are not to be followed (or while they are being followed).

Responding to Gender Based Violence

The framework then turns from questions of culture, ethos and training (which I feel it does quite well) to the issue of responding to incidents of Gender Based Violence, which I think suffers from a lack of detail and direction.

The threshold set out by the framework for applying child protection procedures is where a member of staff “has concerns that a child is at risk of significant harm”. The term “significant harm” is not defined or illustrated within this document. Perhaps professionals are already sufficiently familiar with the term from other contexts?

There are broad exhortations to respond sensitively, to support the children involved, and to align the response with the National Child Protection Guidance. All of which is fine. But there is little in terms of specific notes on what to do. I suspect that what schools are looking for here is clarity, but they will have to look elsewhere – or create their own.

For example, there is an example given of a suggestion made by children and young people’s groups in Stirling and Angus that “It might be helpful to ask if the person experiencing Gender Based Violence would like a friend to accompany them while they speak with school staff, if staff members consider this appropriate and in light of the need to protect the wellbeing of all young people.”

Setting aside for one moment the fluent management speak the young people of Stirling and Angus seem to have adopted wholesale, what are we to make of this? The framework presents this suggestion in a shaded box, divorced from the rest of the text. So, is this a good idea? Is it good practice? Should schools include this in their policies? When would it be considered appropriate (or not)? Should parents be invited / allowed to attend such discussions? We are not told.

In terms of a response to incidents of Gender Based Violence at school, there is a lot about support for both those who have experienced Gender Based Violence and those who have carried out Gender Based Violence. A child’s plan is mentioned more than once as a tool which might be used for a pupil who has carried out Gender Based Violence “with a view to identifying causes and appropriate interventions including additional resources to reduce the likelihood of recurrence”.

Schools are encouraged to identify and name behaviour that constitutes Gender Based Violence, and their policy should set “clear expectations of acceptable and unacceptable behaviour, and the associated responses which school staff can utilise.”

Again, examples of either would have been of use here, I feel. In fairness, the framework does make the important point that using restorative approaches may well be inappropriate as it “has the potential to be unsafe or retraumatising” and notes that “reconciliation may not be possible or advisable in cases of Gender Based Violence”

Child Protection

The framework is pretty clear on this point – “School staff should report incidents of Gender Based Violence where they are aware of, or have reason to believe, that a crime may have occurred or that a child or young person has been seriously harmed.” Onward reporting to Police Scotland and social work should be in line with school child protection procedures.

Collecting Data, Staff and Scenarios

The framework concludes with a section on monitoring, recording and evaluation, and one of Gender Based Violence experienced by staff, neither of which we have time to cover in this (already overly lengthy) article.

There are seven scenarios listed at the end of the framework, although the responses tend to be in the “you should consider these factors” rather than “here’s what you should do” model.

An appendix of professional learning and resources at the end is comprehensive and includes some excellent material. There is enough further reading here to keep you going for months!

Conclusion

I should begin by stating that I am not an expert in this field, and have only occasionally have had cause to advise families whose children have experienced Gender Based Violence. Overall, I think the framework does a very good job of raising and discussing the issues, and I think it would be very helpful in assisting schools with the ethos and culture / preventative side of things. I am less clear of its usefulness in terms of responding to actual incidents.

There are mixed messages about bullying. The National Approach to Anti-Bullying is not listed as one of the resources, although it is referenced within a description of the resource on challenging homophobia, biphobia and transphobia. The National Approach appears to draw a clear line between bullying and Gender Based Violence: “Some behaviour can be perceived as or assumed to be bullying. However, certain incidents can often be more serious and, in fact, criminal in nature. Understanding the individual circumstances is important to ensure that there is a clear distinction between bullying and criminal offences such as hate crime, child sexual exploitation and gender-based violence such as domestic abuse and sexual assault. For instance, when someone is coerced or pressurised to do something sexual or is touched inappropriately, this is not bullying, this is sexual assault or abuse and a form of gender-based violence.” Whereas the framework lists bullying as an example of Gender Based Violence. Some clarity on this point would be welcome.

The section on the law at the end of the framework slightly overstates the reach of the Equality Act 2010 – claiming that it places specific requirements on schools “to prevent unlawful discrimination, harassment and victimisation in their schools”. The equivalent section within the National Approach is more accurate – “Although the harassment provisions of the Equality Act 2010 do not protect pupils from harassment by other pupils, the Act creates a duty on public bodies to have due regard to the need to: eliminate discrimination, harassment and victimisation; advance equality of opportunity; and, to foster good relations between people who share a relevant protected characteristic and those who do not (known as the public sector equality duty).”

In my (admittedly limited) experience, victims of Gender Based Violence at school and their families are usually principally concerned about how to protect themselves from contact of any sort with the person responsible in the future, and whether that person is going to be held accountable. In practice, my experience has been that the expectation or the easier route is often for the victim to move classes or schools – which does nothing to address the second point and discourages disclosure as it can feel like they are being punished for speaking up.

For example, there is an anonymous quote provided by Childline on page 9:

I was sexually harassed by a boy at my school. It makes me cry every time I talk about it. I’ve had meetings with the school and they told me they can’t do anything because there is no evidence of it happening. I have to see him every single day at school and it makes me so angry. I hate feeling like this. I just want to move on but I can’t.

Girl, 17, Childline

An awful situation, but I fear that there is little in the framework which would assist either the child or the school in determining what ought to happen in these circumstances. It is notable that the framework does not mention disciplinary or punitive measures once. The framework focusses on supportive measures, unless the case has reached the threshold of criminal behaviour, in which case it should be reported to the Police. I find it surprising that there are no circumstances in which a school would / could / should be imposing disciplinary measures as part of a response to Gender Based Violence. Or, if there are, that it is not discussed in this document.

Case Summary: Aberdeenshire Council v. CD (Upper Tribunal for Scotland)

On By Iain NisbetIn Additional Support Needs, Case summaryLeave a comment

This is an interesting case concerning the criteria for determining which children or young persons require a Co-ordinated Support Plan (CSP).

Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 sets out the criteria as follows:

For the purposes of this Act, a child or young person requires a plan (referred to in this Act as a “co-ordinated support plan”) for the provision of additional support if-

(a) an education authority are responsible for the school education of the child or young person,

(b) the child or young person has additional support needs arising from-

(i) one or more complex factors, or

(ii) multiple factors,

(c) those needs are likely to continue for more than a year, and

(d) those needs require significant additional support to be provided-

(i) by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or

(ii) by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.

Section 2(1), Education (Additional Support for Learning) (Scotland) Act 2004

The meaning of this provision, and of its four criteria, has already been the subject of much discussion. Some of the criteria are more straightforward than others.

The criterion set out in Section 2(1)(d) tends to be the one which is the hardest to pin down, and has needed the most in the way of judicial interpretation. Of particular note is the case of JT v. Stirling Council [2007] CSIH 52, which more or less settled the correct approach to deciding whether particular support(s) can be considered as “significant” or not.

This case considered the question of what the modifier “significant” applies to in the first place.

CD’s request for a CSP

CD is a pupil in a mainstream secondary school. With the assistance of an advocacy worker from the national children’s support service, My Rights, My Say, he made a formal request to his education authority (Aberdeenshire Council) to determine whether he required a CSP. The education authority decided that he did not.

There was no dispute over subsections 2(1)(a) to (c). It was accepted that these criteria were met. However, the education authority decided that 2(1)(d) did not apply. It was (more or less) accepted that the child required significant additional support from the education authority in the exercise of their education functions. The education authority, however, found that the additional support the child required from social work and health services was not significant.

This then, was at the heart of the matter. Should the Tribunal be considering whether the additional support required (across education and the other agencies) was significant? Or should it consider separately whether the additional support from education was significant and – in addition – whether the additional support from the other agency or agencies was significant. At the First-tier Tribunal (Health and Education Chamber), the first was described as being a “cumulative approach” and the latter as being a “non-cumulative approach” (although the Upper Tribunal did not adopt these terms).

At the First-tier Tribunal, a cumulative approach was adopted, and the education authority were ordered to prepare a CSP for the child. In fact, the Tribunal decided that he would be eligible for a CSP under either approach in any event. This means that the Upper Tribunal appeal which was lodged by the education authority would not have an effect of whether or not CD should have a CSP, but it would certainly have an impact on whether other children and young persons will receive such plans.

As Lady Poole (the Upper Tribunal Judge) notes: “CSPs benefit pupils for whom they are necessary, but they also place burdens on education authorities with finite resources” (pg 2, para 2).

It therefore matters, both for children and young people with additional support needs, but also for education authority finance officers, which approach is correct.

The correct approach

In the end, the decision for the Upper Tribunal was a relatively easy one.

My decision is that the FTS ought to have concluded that in order to meet the criterion in section 2(1)(d), as well as the pupil requiring significant additional support from the education authority, the pupil also had to require significant additional support either from the local authority exercising functions other than education or from one or more appropriate agencies.

Aberdeenshire Council v. CD [2023] UT 28, per Lady Poole at para 10

You can read the full decision here: Aberdeenshire Council v. CD [2023] UT 28

The Upper Tribunal was satisfied that the ordinary meaning of the words “as well as” as used in subsections 2(1)(d)(i) and (ii) was that both sets of additional support had to be significant.

This was held to be consistent with intention of the Scottish Parliament. While it was conceded that “It may be that co-ordination of services would be of assistance, even if services provided by a body external to the education authority are not ‘significant’ ..” it was held that the formal, statutory document of a CSP was intended only “for those with the most extensive co-ordination and support needs”. It was held that this approach “is likely to channel CSPs to cases where there is an increased need to co-ordinate services from different services.”

While the specific issue in this case had not been considered before, the approach adopted by the Upper Tribunal was consistent with statements made by the Inner House of the Court of Session in other cases considering questions of eligibility for a CSP. Even though the point may not have been argued, there was “a consistent assumption common to all of [the cases] which has endured since shortly after the 2004 Act came into force .. It is appropriate that this clear and consistent body of caselaw is followed, rather than the FTS taking a different approach.”

Finally, the preferred approach was consistent with the Code of Practice which, while not binding on the Upper Tribunal, would need a good reason to depart from its provisions. In the view of the Upper Tribunal “insufficient reasons are available in this particular case to depart from the relevant parts of the Code of Practice.”

Additional comments

As sometimes happens, having made the decision, the Upper Tribunal went on to make some more general comments – in this case about Co-ordinated Support Plans. The comments are extremely helpful, and so I am taking the time to summarise them here for you. As the Upper Tribunal notes: “CSPs can be of great benefit to a person with additional support needs and their families, so it is important the statutory criteria are applied properly.”

The Upper Tribunal first noted that just over 241,000 pupils in Scotland have additional support needs (approx. one third of the total pupil population). Of those pupils, only 1,401 have CSPs (i.e. around 0.2% of all pupils). It has been noted elsewhere that while the numbers of pupils with additional support need has been increasing year on year, the numbers of co-ordinated support plans, paradoxically, have been dropping year on year. (cf. “Vital support plans for pupils ‘disappearing'” The Herald, 2019)

  1. The Upper Tribunal notes that the wording of section 2(1)(d) is “those needs require significant additional support to be provided”. That is, what does the child or young person require – not what are they being provided with, or what has been offered. The answers to these questions may differ. As the UT notes “an approach that analyses only support that has in fact been provided, rather than what needs ‘require’, may in some cases be too narrow”. In my experience, all too often an education authority’s pro forma enquiry to appropriate agencies asks only what is being provided. This needs to change.
  2. The Upper Tribunal reiterates the well established approach to determining whether support is “significant” or not – it “is to be judged by reference to the need for co-ordination, with attention being paid to frequency, nature, intensity and duration of the provision of support, and the extent to which the support is necessary for achievement of educational objectives”. This is a useful restatement of the test, underlining the centrality of the need for co-ordination, and the multi-factorial nature of the test. The Upper Tribunal goes on to observe that the term significant “is not intended as an impossibly high standard”.
  3. The decision is clear that there should be no “cumulative approach” or summing-up of support across education and other services. However, the Upper Tribunal confirms the Code of Practice’s approach, which is to take a cumulative approach in determining whether there is significant additional support from sources external to the education authority. “The totality of support required from providers external to the education authority exercising education functions should be considered, in order to determine if it amounts to significant additional support.”

Conclusion

From a pupils’ rights point of view, the decision is a disappointing one, as the opposite decision would likely have led to a substantial increase in the numbers of pupils receiving a CSP. However, I think it is the correct decision, given the wording of the section, the Inner House authority and Code of Practice. And, in its concluding comments, the Upper Tribunal has provided some useful guidance for education authorities which, if followed, should avoid some children with additional support needs being incorrectly refused a CSP.

Photo credit: sweetlouise via Pixabay

Learning hours consultation – my concerns

On By Iain NisbetIn Additional Support Needs, Attendance and absence, Consultation responses, Exclusion, School EducationLeave a comment

Response to Consultation on Prescribing the minimum annual number of learning hours

The Scottish Government are seeking views on the prescribed minimum learning hours for primary and secondary pupils in local authority schools in Scotland.

Sadly, for many pupils the number of hours prescribed will be largely irrelevant as the statutory exemptions provided will allow education authorities to provide reduced learning hours based on broad criteria at their say-so alone.

The concerns outlined below were discussed with Scottish Government officials over a period from the passing of the Education (Scotland) Act 2016 to August 2018.

The Law

As the consultation points out, there is a long-established and near universal practice of schools providing 25 hours per week of school education and 27.5 hours per week in secondary schools.

As there is currently no legal requirement that this be the case, or legal entitlement to those specific number of hours, what is to stop individual pupils from missing out on their full entitlement to school education?

Perhaps surprisingly, it is the laws regulating the use of exclusion from school which provide those safeguards.

If a child or young person is a pupil at a school, they are entitled to attend that school during the school day. For a child or young person to be prevented from attending their school when school is on requires a formal exclusion – with all of the requirements that go with that (specified grounds for exclusion, a right of appeal, a duty to provide alternative means of education). Legally, it is also possible for the parents or young person to agree with the school that the pupil should not attend school (although this is not regarded as good practice).

Schools and education authorities have long used all kinds of linguistic gymnastics to get around the exclusion rules. Such attempts are almost always described as being in the best interests of the child or young person being excluded.

Fortunately, the courts[1], Tribunal[2] and official guidance[3] have been consistently clear that this is not an acceptable approach.

The exclusions guidance does recognise “flexible packages” may be a suitable approach for some pupils. However, this is qualified. It should be following “an appropriate assessment”. And it should “ensure that children and young people attend school or another learning environment for the recommended 25 hours in primary schools and 27.5 hours for secondary schools.”[4]

The exclusions guidance also does recognise a reduction in hours may be possible – although again in highly restricted circumstances. There should be an agreement that this best meets the needs of the child that should be “carefully negotiated” – i.e. agreed with parent and child. The arrangements should also be “for a limited period” and carefully “recorded and monitored”.[5]

The Tribunal takes a similar view: “All children in Scotland have a right to education and authorities have a duty to provide this. All children need to be included, engaged and involved in their education.”

 “The provision of a part time timetable would not be unfavourable if the claimant could not benefit from full time education but there was no evidence to suggest this.”[6]

One of the key expectations of inclusive education in Scotland is that “All children and young people should receive a full time education including flexible approaches to meet their needs.”[7]

National statistics demonstrate that disabled pupils and looked after pupils are disproportionately subject to exclusion: both formal and informal exclusions.[8]

As the 2018 report “Not included, not engaged, not involved: A report on the experiences of autistic children missing school.” notes, informal exclusions are a particular problem:

“As well as through formal exclusions from school, instances have been reported of autistic children being excluded from their education in other ways. This includes the use of part-time timetables, children missing school due to anxiety or other health needs, and a lack of suitable school placement or support meaning a child is unable to be in school. There are also concerns that many families are being asked to pick their child up from school early on a regular basis, without the child having been formally excluded – a practice which is unlawful.”[9]

The Promise commits Scotland to ending the exclusion of looked after children: “The formal and informal exclusion of care experienced children from education will end.” Plan 21-24 states that this will happen by 31 March 2024 – less than a year away.[10]

As The Promise Oversight Board’s Report ONE (May 2022) notes: “We do not know the extent of informal exclusion. [Formal exclusions] data does not tell us anything meaningful. There are differing reporting practices across local authorities, meaning this figure is only indicative.”[11]

The Proposal

Section 2ZA of the Education (Scotland) Act 1980 (as amended) requires education authorities to ensure that no fewer than the prescribed number of learning hours are made available during each school year to each pupil for whose school education they are responsible.

Subsection (3) provides that an education authority may provide fewer than the prescribed hours in certain specified circumstances.

Those relevant circumstances include:

(4)(b) that the authority is satisfied that the pupil’s wellbeing would be adversely affected if the prescribed hours were to be made available to the pupil..

The Problems

This innocuous sounding exemption raises several difficulties which will impact the most vulnerable children most severely:

The decision to provide a child with less than their full entitlement to education can be made by the education authority alone. There is no requirement (as there is elsewhere in education law) to seek the views of the child or their parents, still less to secure their consent. The consultation document says that the exception “would give the education authority flexibility to deliver an individualised number of learning hours to a pupil if it is agreed that this is appropriate to meet the needs of that pupil and respects their right to an education.” This is inaccurate and misleading as no agreement is legally required to implement the exception. This wording in the consultation document is likely to mean that this issue is not properly understood or addressed by consultees. It will provide Scottish Ministers with an inadequate basis on which to decide what action to take as a result.

That sentence would more accurately read “This would give the education authority legal authority to deliver a lower number of learning hours to a pupil even if others (the child, parents, social work, health, vol orgs etc) do not agree that this is appropriate to meet the needs of the pupil and respects their right to an education.”

It presupposes that where a child’s wellbeing is being affected by their attendance at school, that the correct approach is to reduce their attendance at school, rather than to look at e.g. reasonable adjustments that can be made for the pupil, or whether an alternative school placement would be more appropriate.

Far from being a justification for reduced attendance, the mainstreaming guidance cites, in particular, the wellbeing indicators of “Included” and “Achieving” as underlining the importance of full-time attendance at school.

It also notes the importance of supporting pupils’ inclusion and participation at school. Key expectations include: “All children and young people should be supported to participate in all parts of school life” and “All children and young people should be supported to overcome barriers to learning and achieve their full potential”.[12]

Scottish Government guidance on attendance also recognises: “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.”[13]

The grounds on which an education authority can rely on the exemption to justify providing less than a child’s full entitlement to learning hours are framed in extremely broad terms.

As detailed above, the repeated experience of children subject to informal exclusion, part-time timetables, sending home etc. is that they (or their parents) will be told that it is for the child’s benefit, in their best interests, in order to support their wellbeing. The child, or their parents frequently do not share that view.

Attendance at school is important and is closely monitored and enforced. A parent’s duty to ensure their child attends school cannot be overridden because they are satisfied that the child is being insufficiently “Nurtured” at school. Indeed, even where parents have legitimate concerns about whether their child is “Safe” at school (e.g. due to bullying) the Courts have been reluctant to accept that as a reasonable excuse for non-attendance[14].

Why would an education authority be empowered to effectively prevent a child from attending school, in circumstances where a parent (who is likely to know and understand their child’s wellbeing better) is forbidden from doing so?

This exemption would allow education authorities to reduce children’s attendance at school in circumstances which fall well below the legal threshold of “reasonable excuse” for non-attendance. As even formal exclusion from school is not regarded as a reasonable excuse for non-attendance[15], this could potentially  leave parents open to enforcement proceedings by way of referral to the children’s panel or even criminal prosecution in the Sheriff Court.

By structuring this as an exemption from the duty (in terms of subsections (3) and (4)) rather than circumstances in which different provision can be made for different purposes (or different types of pupil) (in terms of subsection (9)(b)&(c)), there is not even the ability for Scottish Ministers to set a minimum number of learning hours as a lower threshold, or to specify alternative types of provision which could be considered learning hours in circumstances where school attendance was not suitable.

 The introduction of a prescribed number of annual learning hours follows a similar pattern to the mandatory amount of early learning and childcare. Sections 47 & 48 of the Children and Young People (Scotland) Act 2014 requires education authorities to secure the mandatory amount of early learning and childcare is made available for eligible pre-school children in their area. The mandatory amount is currently prescribed as 1140 hours annually. It is not subject to exemptions as Section 2ZA is. There is no ability for the education authority to depart from their duty to make the provision available of the grounds of their view of the child’s wellbeing.

The only circumstance in which an exemption applies is in relation to looked after two year olds (s49) – in which case a specific duty to make alternative arrangements applies. The exemption cannot be used for older children.

Indeed, the exclusions guidance states explicitly that the annual hours entitlement for early learning and childcare applies even where a child has been excluded by their nursery provider – “the child still has a legal right to receive the hours they might miss due to having been excluded.”[16]

Why should it be the case that an annual entitlement hours for nursery education is secure and guaranteed for children with additional support needs, but the equivalent entitlement to learning hours in primary or secondary education is subject to a broad, discretionary and unregulated exemption? Why are children’s rights to primary and secondary education being treated as lesser than their rights to nursery education?

There is no good, accessible or direct means of challenging a decision of the education authority to provide fewer than a pupil’s full entitlement of learning hours on these grounds. There is no specific procedure that the education authority require to take, nor any obligation on them to inform the child or their parents of their rights (such as they are) or sources of advice and support.

The lack of safeguards (procedural or substantive) in the use of this exemption is of particular concern in the context that the application of an exemption engages fundamental rights, including the right to education under Article 28 of the UN Convention on the Rights of the Child, Article 24 of the UN Convention on the Rights of Persons with Disabilities, and Article 2 of Protocol 1 of the European Convention on Human Rights.

In Summary

The exemption found in Section 2ZA(4)(a) of the Education (Scotland) Act 1980:

  • directly contradicts the Scottish Government guidance on the presumption of mainstreaming, exclusion and attendance;
  • undermines the commitment in The Promise to end formal and informal exclusion for care experienced pupils;
  • can be relied on unilaterally with no procedural or substantive safeguards or protections for children affected.

It provides a legal justification for failing to provide Scotland’s most vulnerable children with their full entitlement of education and is likely to make an existing problem much, much worse.

How to fix this…

The implementation of this exemption should be delayed. This should be possible by way of regulation, as a “transitional or transitory” measure, in terms of Section 2ZA(9)(a).

A full Equality Impact Assessment and Children’s Rights Impact Assessment requires to be undertaken, as well as a fresh consultation which highlights and centres this issue to allow it to be properly considered.

Significant amendment to / partial repeal of Section 2ZA is likely to be required in due course.

If the implementation absolutely has to go ahead in the meantime, Section 2ZA(10) allows for the list at subsection (7) to be amended. Consideration should be given to adding the four key feature of inclusion: present, participating, achieving, and supported.

Consideration should be given to adding the use of this exemption where it is not appropriate and / or does not respect the child’s right to education to the list of decisions which may be referred to the First-tier Tribunal in Section 18(3) of the Education (Additional Support for Learning) (Scotland) Act 2004.

Failing which, consideration should be given to adding the use of this exemption where is it not appropriate and / or does not respect the child’s right to education to the list of specified matters in the Schedule to the Additional Support for Learning Dispute Resolution (Scotland) Regulations 2005.

These matters could be effected by way of subordinate legislation (Section 16 and 20 of the 2004 Act, respectively).

[1] Proudfoot v. Glasgow City Council 2003 SLT (Sh Ct) 23 – “benefit of a fresh start” was found not to be a legitimate ground for exclusion

[2] ASN/D/22/01/2021 – “The responsible body deny that their decision to stop the claimant from attending classes in the school, which included moving all of her learning opportunities outwith the school building (R106, para 23), amounted to an exclusion. We are not clear what the responsible body think the difference is between their decision and an exclusion. The decision had the purpose and effect of bringing the claimant’s attendance at the school to an end. ..  There was a clear intention that the claimant should not attend school and not access any classes. On any reasonable interpretation this amounts to exclusion.”

[3] Included, Engaged and Involved Part 2: A Positive Approach to Preventing and Managing School Exclusions: “Sending home without excluding – All exclusions from school must be formally recorded. Children and young people must not be sent home on an ‘informal exclusion’ or sent home to ‘cool-off’”

[4] Included, Engaged and Involved Part 2, pg 25

[5] Included, Engaged and Involved Part 2, pg 25

[6] ASN/D/22/01/2021, supra

[7] “Guidance on the presumption to provide education in a mainstream setting” March 2019, at pg 6

[8] Cf. https://www.gov.scot/publications/summary-statistics-schools-scotland/pages/8/ and https://www.gov.scot/publications/education-outcomes-looked-children-2020-21/pages/6/#:~:text=In%202020%2F21%2C%20the%20rate,1%2C000%20pupils%20for%20all%20pupils.

[9] https://www.notengaged.com/download/SA-Out-Of-School-Report.pdf at pg 3

[10] https://thepromise.scot/resources/2021/plan-21-24.pdf at pg 22

[11] https://thepromise.scot/resources/2022/promise-oversight-board-report-one.pdf at pg 29

[12] At pg 10 “Supported”

[13] “Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools”

[14] Cf. Montgomery v Cumming, High Court of Justiciary, unreported, 17 December 1998 – https://www.scotcourts.gov.uk/search-judgments/judgment?id=634c87a6-8980-69d2-b500-ff0000d74aa7

[15] Cf. D. v. Kennedy 1988 SLT 55

[16] Included Engaged and Involved Part 2, at pg 32

Article on Physical Intervention in Schools

On By Iain NisbetIn Additional Support Needs, Pupil Welfare / WellbeingLeave a comment

It is a little late to be bringing you news of the publication of Edition 9 of the Health and Education Chamber’s Bulletin – as it has been available since November! However, the Bulletins, which are always worth a read, are slightly tucked away in a corner of the website where you wouldn’t necessarily stumble across them.

So, I am letting you know that the latest Bulletin contains some really useful and interesting material including:

  • an update on the return to “in person” hearings;
  • an article by Angela Morgan OBE, independent chair of the review of additional support for learning;
  • an article by one of the legal members on the case of Cowie & Ors v Scottish Fire and Rescue Service on what is meant by “unfavourable treatment”;
  • an article by one of the specialist members on The Promise, and what steps are being taken to implement it, particularly in the Falkirk / Forth Valley area.

It also features an article by me on the Scottish Government’s draft guidance on the use of physical intervention in schools. the article can be found on pp 16-19 of the Bulletin. It looks in detail at cases which have been decided by the Tribunal concerning the use of restraint / physical intervention in schools.

National guidance will undoubtedly be of assistance to tribunals considering claims of disability discrimination in cases of physical intervention or restraint. The rights based approach adopted by the Scottish Government aligns well with the Tribunal’s existing decisions.

Article: “Draft Guidance on the Use of Physical Intervention in Schools” Nisbet, I. (HEC Bulletin, Ed 9) Nov 2022

To read the full article, you can access the Bulletin here:

“The Bulletin” Edition 9 (Nov 2022) – Health and Education Chamber (PDF)

Education Appeal Committees – the end?

On By Iain NisbetIn Additional Support Needs, Consultation responses, Placing RequestsLeave a comment

The Scottish Government recently consulted on a (longstanding) proposal that the functions of education appeal committees (hearing exclusion appeals, and most placing request appeals) be transferred to the Health and Education Chamber of the First-tier Tribunal for Scotland.

With the assistance of colleagues, I prepared a response on behalf of My Rights, My Say. The edited highlights of the response are below.

Continue reading “Education Appeal Committees – the end?” →

Listen Up!

On By Iain NisbetIn Bullying, Pupil Welfare / Wellbeing, School EducationLeave a comment

This week has been Anti-Bullying Week 2022, so it seems appropriate to take a quick look at a recent decision of the Scottish Public Services Ombudsman (SPSO). On the one hand, it is a complaint about a complaint about a complaint – and those can end up being very focussed on the procedural side of things. On the other, it does raise some issues which I do hear a lot from parents who are engaging with schools when their child is being bullied.

Read more: Listen Up!

Child A was being bullied at school. The parents in question reported to the school (the local mainstream secondary school) “a number of incidents” of bullying, but felt that the school had failed to adequately investigate the reported incidents. They complained to the local authority.

However, the parents felt that the Council failed to deal with this complaint appropriately, and made a further complaint to the SPSO. Ultimately (though it is not clear at what point this happened), the parents made a placing request for Child A to attend another school. It seems that the Council refused the placing request, and that an appeal was lodged. There is no record of the outcome of the appeal.

The SPSO did find that the school took steps to investigate the incidents in line with “the relevant guidance” (I assume this means their own anti-bullying policy and /or the national approach to anti-bullying) – and that they had been “helpful and supportive”.

However, they also found that in some instances the school had failed to speak to the pupils being accused of the bullying, had failed to keep records of the steps taken by them, and failed to provide the parents with follow-up contact, in line with the guidance.

The Ombudsman recommended that the Council issue an apology to the child and their parents, in accordance with the SPSO guidance on apology. Sidenote – this is genuinely excellent guidance and I highly recommend it. Recommendations were also made on how complaints about bullying should be dealt with in future.

It is not possible to draw general principles from a single SPSO decision, reported in summary only. However, in looking at this case, it is clear that the SPSO regarded the following as being of some importance:

  • where appropriate, pupils accused of bullying should be spoken to;
  • a record of the school’s response to allegations of bullying should be kept; and
  • parents who have made a complaint of bullying should be provided with follow-up contact from the school.

SPSO decision 201909305, East Dunbartonshire Council

Second sidenote – Govan Law Centre’s “Bullying at School” document remains a useful guide to the law in this area and practical suggestions on using the law to progress complaints re: bullying.

Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill

On By Iain NisbetIn Consultation responses, Equality Act 2010, School EducationLeave a comment

The Education, Children and Young People Committee is the lead committee for the Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill, a private member’s Bill, introduced by Pam Duncan-Glancy MSP.

The period for interested parties to submit their views on the Bill to the Committee has recently ended. Here is a summary of my submissions.

Continue reading “Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill” →

School uniform consultation

On By Iain NisbetIn Consultation responses, Equality Act 2010, Exclusion, School EducationLeave a comment

Recently, the Scottish Government issued a consultation on national school uniform guidance that they are planning to issue. The main stated aims of the new guidance will be to reduce the costs for families, and to comply with equalities obligations.

The guidance is to apply to all schools in Scotland, whether local authority schools, independent schools, or grant-aided schools.

For a consultation document, it already has some very clear ideas about what the proposed guidance will, and will not contain.

So, we know that the guidance will not:

  • require the adoption of specific school uniform items;
  • be a national school uniform policy – instead it will help schools and education authorities to come up with their own policies;
  • abolish school uniform altogether.

And, we know that the guidance will cover:

  • the affordability of school uniform;
  • equalities considerations, aligned to protected characteristics;
  • clothing and equipment for PE, physical activity and sport; and
  • the use of exclusion as a compliance measure.

Finally, there are a set of draft principles, which the consultation document invites comment on. The section begins “national school uniform policy should ..” – which is odd, since the same document has already assured us “It is not intended that there will be a national school uniform policy which is applied in all schools – therefore this is not the subject of this consultation and is not in scope.”

Anyway, the draft principles are that national school uniform policy should:

  • Be informed by the views of children and young people
  • Apply to education authority, grant-aided and independent schools
  • Seeks to reduce the cost of school uniform for families Supports equity in relation to school uniform
  • Promotes equality, including recognising specific matters relating to religion and belief, disability, sex and gender
  • Applies to all uniform uses, including PE and senior phase
  • Recognises the need for practicality, including in relation to seasonal needs
  • Reflects sustainable approaches to school uniform
  • Continues the position of no legal requirement upon pupils to wear school uniform
  • Considers appropriate response for persistent non-wearing of uniform, recognising ethos and culture of promoting attendance and reducing absence
  • Recognises and builds upon current good practice within schools
  • Does not introduce unnecessary barriers to school uniform policy and practices.

The launch of the consultation prompted the Daily Telegraph to speculate that “Scottish pupils could be told to wear gender-neutral school uniforms” despite there being no mention of this at all. The article also claims that “SNP and Greens reveal plans for a national uniform policy to cut costs for parents and promote equality in classrooms”. In fairness, as we’ve discussed above, the consultation document is sending mixed messages on whether there is to be a national uniform policy or not. The article is worth looking at for the photo of Fettes School’s pink striped blazers alone.

I have responded to the consultation in brief, and a summary of my thoughts are as follows.

National guidance to assist schools in making sure that they can comply with their equalities duties would, no doubt, be helpful. Guidance to assist schools in reducing the cost of school uniform is also to be welcomed. I agree that it would not be appropriate to have a nationally mandated school uniform.

There is mention of “the use of exclusion as a compliance measure” as being within the scope of the guidance. I can only hope that this means that the guidance will make it clear that it is never appropriate to use exclusion as a means of ensuring compliance with school uniform policy.

In the national exclusions guidance (Included, Engaged & Involved Part 2, 2017) it is made clear that this would include sending pupils home. Therefore, the implication should be made clear that pupils should not be sent home to change in the event of not wearing school uniform – especially in the state sector.

There seems to me to be a fundamental discrepancy between two of the principles listed.

On the one hand, there is a statement that there is “no legal requirement upon pupils to wear school uniform” while at the same time considering “appropriate responses for persistent non-wearing of uniform”.

If it is not a legal requirement, then there ought not to be punitive measures for a breach of uniform policy. If there are punitive or disciplinary measures set out in national guidance for a failure (persistent or otherwise) then it is misleading to suggest that there is no legal requirement to wear school uniform.

Hopefully, what is intended here is that the “appropriate responses” referred to are supportive measures, rather than disciplinary ones.

Centre Stage

On By Iain NisbetIn Additional Support NeedsLeave a comment

Yesterday, the report by Prof. Ken Muir CBE “Putting Learners at the Centre: Towards a Future Vision for Scottish Education” was published, alongside the Scottish Government’s response to the report and its recommendations. The recommendations are all either fully accepted, broadly accepted or accepted in principle.

The headlines, of course, are on what is to become of Scotland’s national agencies. In summary:

  • The Scottish Qualifications Authority is to be replaced by a new body with the same role, provisionally called “Qualifications Scotland” – which will have a governance structure which allows for more participation by pupils, teachers and other stakeholders. (I note that the URL “www.qualifications.scot” already redirects to the current SQA website)
  • There is to be a national agency for Scottish education, which will take on all of the current functions of Education Scotland (apart from the inspection functions), plus some other education bits and bobs (including the Scottish Credit and Qualifications Framework (SCQF) Partnership).
  • There will be new Inspectorate body established, with its independence guaranteed in legislation.
Continue reading “Centre Stage” →

CSP Report

On By Iain NisbetIn Additional Support Needs, School EducationLeave a comment

At the end of November, the short-life working group on Co-ordinated Support Plans (CSPs) released its Final Report. The purpose of the report was to identify barriers to the effective implementation of the CSP legislation and to make recommendations to support progress.

The report begins, as these things often do, with a statement of principles. In this case, we are reminded that “Scottish education is based on the belief that education is a human right and that all children and young people should be supported to reach their full potential.” The Scottish Government’s intention to incorporate the UN Convention on the Rights of the Child is referenced, as are the four key features of inclusion, which we first saw in the guidance on the presumption of mainstreaming.

It also highlights, helpfully, that “Support is not dependent on a diagnosis.” and “Where the legal tests are met for a CSP, the child or young person must have a CSP – even where other plans are in place.” These short reminders could usefully be tattooed on the forearms of everyone working in the sector – although this is not one of the report’s recommendations.

As I am involved in the My Rights, My Say project, I was pleased to see that the report notes the right of children aged 12-15 with capacity to ask the education authority to be assessed for a CSP and to challenge CSP decisions at Tribunal.

So, to the recommendations. The report notes that the legislation and policy in this field is “commendable and well-intentioned” but that there is “a significant gap between policy and practice”. It highlights the need for “consistency and a common understanding of the language used in relation to CSPs”. To that end, it recommends promoting awareness and knowledge. This should involve “a set of tailored ‘key messages'” to be “widely shared with children and young people, parents and carers and professionals across agencies” – including social work and health.

However, I think there are already some really good materials out there, both those created by some education authorities, and those made by the third sector, by organisations like Enquire. The difficulty, as always, is getting this information to the right people at the right time.

The report does concede that the statutory criteria are complex, and that (over 15 years on!) there is still a “variable interpretation of what ‘significant additional support’ means when considering whether a CSP should be opened.” This is as close as the report gets to suggesting that the legislation itself needs to be looked at again. In fairness, this was outwith their remit, and is a fairly heavy hint.

The Code of Practice is due to be refreshed shortly, and the report sees this as an opportunity to ensure that it is more accessible, and clearly explains the “complex legal duties” in this field. While this is obviously easier said than done, it is definitely a worthwhile goal. The report also notes that the 4th edition of the statutory Code should clarify the relationship between the CSP and other plans used for children.

The report does understand that to help professionals become more familiar with the rules and policy around CSPs will take a commitment in time, and so recommends that professional (both in education and in other agencies) be allocated specific time to access the appropriate professional learning resources, and that this should lead to those professionals being able to “proactively provide families with the information they require about CSPs”.

Further recommendations include:

  • “ensuring that clear and appropriate signposting is available on local authority web pages”
  • further guidance to be developed “to remove barriers to effective engagement”
  • the Additional Support for Learning Implementation Group (ASLIG) to engage with work on “streamlining planning processes”. Specifically we are told that “the next phase of the refresh of the GIRFEC policy and practice materials .. will focus on the Child’s Plan, with the aim of moving towards a ‘one child one plan’ approach.” This is expected to lead to “[s]trengthening guidance around a single planning process”
  • ASLIG to consider the issue of resources (often the elephant in the room), having regard to “the need to ensure that there are sufficient numbers of appropriately trained staff to provide support”.
  • ASLIG to support “the planned audit of outcomes for children and young people with additional support needs undertaken by Audit Scotland.” Given that this has been something of a hobby horse for ASLIG for a while now, I’d imagine that this support would be enthusiastically forthcoming!

The renewed focus on the Child’s Plan in this report is interesting, given that the baby of the Child’s Plan appears to have been (legislatively) thrown out with the bathwater of the Named Person in the proposed repeal “in due course” of sections of the Children and Young People (Scotland) Act 2014, following the Supreme Court‘s decision in The Christian Institute & Ors v. The Lord Advocate [2016] UKSC 51.

So, what happens next? “This report has been shared with ASLIG who will publish a response to the report and consider its findings as part of their future work programme and priorities. This will include consideration of how to monitor delivery of the actions identified and the expected impact on improving outcomes for children and young people.” I’ll try to keep you posted as that happens.