Prescribing the minimum annual number of learning hours: consultation

6. Delivering fewer learning hours

6.1 Section 2ZA(4) of the 1980 Act makes provision for circumstances where education authorities may make available fewer than the minimum number of prescribed hours, without the need to apply for an exemption. Those circumstances are:

• where the pupil's wellbeing would be adversely affected;
• where matters outwith the authority's control make it impracticable to make the prescribed hours available; and
• where other circumstances that Ministers may prescribe by regulations apply.

Pupils' wellbeing

6.2 In order to be satisfied that a pupil's wellbeing would be adversely affected if the minimum number of prescribed hours were to be made available, section 2ZA(7) requires the education authority to consider the extent to which the pupil is or would be: safe, healthy, achieving, nurtured, active, respected, responsible, and included. These are the eight wellbeing indicators^[4] which form part of the Getting it right for every child (GIRFEC) approach. This 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.

6.3 In line with the duties in the Standards in Scotland's Schools etc Act 2000, the focus must be on meeting pupils' needs and giving every pupil the opportunity to benefit from mainstream school hours unless, exceptionally, this would not be in the pupil's best interest. For example, some pupils may find it hard to cope with the length of the mainstream week and a shorter school day may best meet their needs. There will also be limited circumstances in which school breaks or lunchtimes can count as learning hours. Most commonly this would occur in schools that provide education for children and young people with complex additional support needs. In these circumstances teachers' planning would make clear references to the learning outcomes through teaching being carried out during these times.

Matters outwith the authority's control

6.4 An authority may secure that fewer than the prescribed hours are made available to pupils where there are matters outwith the control of the authority that makes it impracticable to provide those hours. We would expect such unforeseen circumstances to include closures due to bad weather, industrial action, or as a result of damage to school buildings due to, for example, flood or fire.

6.5 It would not include circumstances such as short term planned closures due to learners moving out or back into a school building following refurbishment which would require a Ministerial direction providing an exemption from or modification of the learning hours requirements.

Other circumstances Ministers may prescribe by regulations

6.6 Ministers have a power under section 2ZA(4)(c) of the 1980 Act to prescribe the other circumstances that would allow provision of fewer than the prescribed number of learning hours. For example, children or young people who have been temporarily excluded from school are expected to continue to receive an education while excluded, and it is expected that alternative education provision should be in place after three days. However, an exemption might provide for these learners not to be provided with the minimum number of learning hours.

6.7 We would welcome views on whether there are other such circumstances where fewer than the prescribed number of learning hours are provided that should be specified in learning hours regulations.

Exemptions

6.8 Other than the specific exceptions set out above, section 21 of the 2016 Act amends section 133(4) of the 1980 Act to provide a similar exemption process to the process that applies to the 190 days requirement, to allow authorities to apply for a direction from Ministers for an exemption from, or modification of, the requirements of any regulations on learning hours. This might address unavoidable ad hoc reductions in learning hours in a similar way to the current process for seeking an exemption from the requirement on schools to be open for 190 days. As it is likely that an exemption from the learning hours requirement would also require an exemption from the 190 days requirement, we will work with local authorities to devise an efficient process for both types of applications to be made. We propose that the learning hours regulations would be accompanied by guidance to local authorities on the process for seeking an exemption.