4 How and Why Could The Exceptions Be Applied?
57. This section provides further considerations for education authority decision makers if it becomes clear that one of the exceptions might apply. Where a child or young person is in school, during the decision making process the education authority will work with the school(s) and/or early learning and childcare provider(s), parents or carers and other partners to see what further adjustments can be made to ensure that the child or young person is getting the best possible support within their current provision. Where the child or young person is not in school or an early learning and childcare setting, the decision making process will be informed by the information available about the needs of the child and young person, and information from parents and partners.
58. If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person's wellbeing, in order to reach a conclusion on the application of the three exceptions outlined in the Standards in Scotland's Schools etc. Act 2000. A summary of section 15 can be found in paragraph 42 and Annex A of this document. In best practice, this process should be completed with input from all those that know the child (see paragraphs 53 and 54 of the document). The exceptions do not automatically apply and the onus is on the education authority to demonstrate that the exception should apply.
59. The decision on placement and the use of exceptions is for the education authority. Children and young people and parents or carers must be involved in this process and in good practice the decision should be informed by the class teacher and the range of professionals involved in the child's life. The planning and assessment processes used for additional support for learning and set out within the Code of Practice should be seen as providing the structure for these discussions. It should be a transparent process with timescales attached. Education authorities should be mindful of the timescales which are provided by statute in relation to placing request decisions, by way of provisions for deemed decisions. Earliest possible decisions should be made to allow for appropriate planning of any transition to a new educational setting.
60. The three exceptions set out in section 15(3) of the 2000 Act are that mainstream education:
(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
The provision further states that it shall be presumed that those circumstances arise only exceptionally.
61. These terms deliberately do not overprescribe what the presumption to provide education in a mainstream school or early learning and childcare setting means in practice. Local circumstances can be very different and how efficient education can be provided will vary widely across local authorities. A difficult but essential role of local authorities is to strike a balance for the presumption of mainstream education for as many children and young people as possible and the use of specialist provision. Special schools are defined in law as schools whose sole or main purpose is to provide education especially suited to pupils with additional support needs. Units or bases which are attached to mainstream schools (and which are wholly or mainly for pupils with additional support needs) are in law, captured within the definition of a special school.
62. Guidance on how these exceptions could be interpreted is included in this section, but it is important that local authorities take account of their local circumstances and priorities when arriving at decisions. To assist authorities in their decision making process, there are a number of reflective questions in this section. If authorities have answered these questions before deciding which provision best suits a child or young person, then the decision making process is more transparent for everyone involved, including parents and carers and the children and young people at the centre of the process. As set out in the previous section, consideration should also be given to ensuring that thought is given to the key features of inclusion.
63. If the education authority considers that the child or young person cannot be supported within a mainstream environment it may be that the best option for that child or young person is a flexible placement within a unit or a base or a placement in a special school. Where one or more of the exceptions is considered to apply, the reasons for this must be clearly demonstrated.
Ability and aptitude:
64. This exception applies where mainstream education would not be suited to the ability or aptitude of the child. This guidance frequently refers to 'achievement' as being one of the key features of successful inclusion. The terms ability and aptitude are narrower than achievement but reference to achievement reflects recent learning developments. Therefore when reflecting on achievement, ability and aptitude will be considered. It is essential that ambition is retained for all children and young people to enable them to fulfil their full learning potential. Achievement for children and young people with additional support needs is best realised through following a personalised learning pathway. It can be progress towards personal goals or the opportunity to exceed ability and aptitude with challenging and ambitious curricular and wellbeing targets. Achievement can also be more practical, and involve developing skills such as relationship-building and wider life skills. Ideally, achievement is a combination of the two, utilising the mainstream environment to include those with additional support needs alongside other learners and to aid the development of a more inclusive and just society. Achievement is about each and every child and young person fulfilling their full potential and if a child or young person is meeting learning targets and has a full experience of school life then they are being well supported by a mainstream education system. If they are not, or it appears that appropriate progress is not being made, then consideration should be given to whether they could be better supported in their current environment or whether the exception applies.
Reflective questions on ability and aptitude
Identifying and assessing additional support needs
The Getting it Right For Every Child Practice Model provides the framework for considering the needs of all children and young people. At the core of the Practice Model are the following 5 key questions staff should use when assessing the needs of children and young people:
1. What is getting in the way of this child or young person's wellbeing?
2. Do I have all the information I need to help this child or young person?
3. What can I now do to help this child or young person?
4. What can my department/school do to help this young person?
5. What additional help, if any, may be needed from others?
The bullets below provide further prompts when considering achievement.
- Does the school have effective assessment systems in place to identify the ever increasing diverse needs of children?
- Are there robust arrangements in place to ensure all learners have regular communication and discussions with a key adult to review their learning and plan next steps?
- What information about the strengths, specific needs and support systems required for each learner requiring additional support do staff have access to? Have children and young people been able to contribute to this information?
- Do children and young people and their parents or carers have curricular learning targets to work on at home and at school?
- How are children and young people encouraged to become independent learners, expressing their views and making choices?
- How are children and young people encouraged to be as involved as possible in all aspects of the school and community?
- Has the child or young person been able to make appropriate progress building on prior levels of achievement? How has that been evidenced?
- How does the school assess, track and monitor progress in learning for all children and young people including those on individual programmes?
- How are children and young people improving their wellbeing? How do the school know they are making progress?
- Is the child or young person beginning to or continuing to make progress using the wellbeing indicators?
Incompatible With The Efficient Education For Other Children:
65. This exception recognises that the inclusion of a child or young person with additional support needs within a particular classroom or learning environment may be incompatible with the provision of efficient education for the children with whom the child would be educated. This is particularly likely to be the case where a child or young person's additional support needs include particular behaviours which could be disruptive to other children or young people, or where behaviours are a signal of concern or the child or young person's distress. These behaviours may lead to disruption for other learners, but are beyond the control of the child or young person and therefore are likely to occur regularly or frequently. Also the learning of others may be impacted where the child or young person receives support from an adult within the classroom, for medical matters, keeping the child or young person focussed and on task, or to support positive behaviour. Education authorities must consider whether the placement of the individual child or young person within a particular mainstream environment would be incompatible with the provision of efficient education for the children with whom the child would be educated. This will require careful consideration, taking the full circumstances, evidence and options for provision of proactive support to address the pupil's needsinto account prior to reaching a conclusion. Included, Engaged and Involved Part 2 sets out the range of supports and strategies that can be put in place to support children and young people in developing and maintaining positive relationships and behaviour. Education authority staff will need to handle discussions on these matters with parents/carers with sensitivity and honesty, recognising that consideration of this exception may feel like a rejection of their child by the school or early learning and childcare setting.
Reflective questions on efficient education for other children
- To what extent is the placement an inclusive learning environment?
- How well does curriculum planning meet the needs of different groups of learners?
- How has or would the placement of this child or young person positively impact on the education, wellbeing and wider experience of other children and young people?
- Will the placement of this child or young person adversely impact on the education, wellbeing and wider experience of other children or young people? Can any adverse impact be overcome?
- How will the placement of this child or young person support the learning and wellbeing of the other children and young people? Equally, how might the placement of this child or young person present barriers to the learning of other children or young people?
- How will you balance the needs of all children and young people within the school or early learning and childcare setting?
Unreasonable Public Expenditure:
66. The exception applies where mainstream education would result in unreasonable public expenditure being incurred that would not normally be incurred. Each local authority also has to consider what a reasonable level of public expenditure is within the context of their commitments. These commitments range from their legislative duties to the political commitments made by their elected members who are accountable to the communities they serve. The scale of resource available to adapt to a child or young person's needs must also be considered in light of the other exemptions, particularly as regards efficient education for other children and whether this expense would be ordinarily be incurred.
67. Ultimately the delicate balancing of differing priorities is a complex and necessary task undertaken by local authorities. Local authorities must take into account a range of factors relating to the child or young person, their parents or carers, their teachers, their school leaders, their school(s) and their early learning and childcare settings. They should carefully weigh the variables and produce an outcome that they are satisfied is the best option for the child, their classmates and does not result in unreasonable public expenditure being incurred that would not normally be incurred. The questions below are designed to aid that process.
Reflective Questions On Unreasonable Public Expenditure
- How do we ensure that our resources are used most effectively? How do we ensure transparency and equity?
- How do we allocate resources to sustain improvement priorities effectively?
- What would the general benefit be to other pupils, in the long and short term, of the resource currently being proposed for the child or young person?
68. This section sets out a range of information and advice to support decision making. It is recognised that these decisions are complex, and require to take account a wide variety of factors and considerations. The key principle is that the decision that is reached, regardless of whether that decision is for placement in a mainstream, special school or for the use of flexible provision, must be about meeting the child or young person's needs, with a continued focus on reaching that individual pupil's full potential.