Schools - prescribing the minimum annual number of learning hours: consultation analysis

9. Flexibility and entitlements

Across the consultation, respondents raised both positive and negative impacts of the proposal on the ability of local authorities to deliver education which meets individual needs. Themes about flexibility and entitlements are covered in this chapter.

9.1 Flexibility and accommodating individual needs

The most prevalent theme in Q1, mentioned by many respondents, was that minimum learning hours should not be prescribed as many learners require individual arrangements to meet their needs. Flexibility in the application of learning hours to meet individual needs was a recurring theme evident across multiple questions, particularly Q1, Q2 and Q3.

Various reasons were given for this, such as some pupils having specific learning needs or additional support needs, school days already being considered too long for many pupils and the reluctance of some to attend school, compounded by the impact of lockdowns.

9.2 Learners with additional support needs

It was felt that pupils with additional support needs could be disadvantaged by the proposals. Respondents noted that some of these learners already struggled to obtain the proposed minimum number of learning hours, or are disproportionately more likely to experience exclusions.

Enquire – The Scottish Advice Service for Additional Support for Learning – expressed concerns about whether authorities would be able to provide a minimum number of learning hours for pupils with additional support needs. They highlighted existing difficulties in achieving an adequate education for some, noting that around a quarter of calls to their helpline related to children and young people who were not in school.

They suggested robust accountability and due process be followed, with national guidance which might include: recording reasons for any reduction in hours and why it is in the child’s best interests; time-limiting any agreements; setting clear review dates and considering if further assessments or alternative provision is required; involving the pupil and their parents in any decisions; keeping clear attendance records on SEEMIS (pupil recording system); recording agreed actions to increase or ensure access to learning; and clarifying arrangements should there be disagreements about reduced attendance.

“We feel that if our concerns are addressed, via awareness of these issues and development of robust guidance and mitigations, setting minimum learning hours could be beneficial.” - Enquire

9.3 Other reasons for flexibility

Several respondents highlighted that some pupils are already on a reduced learning timetable for various reasons, for instance, due to a lack of specialist teachers or staff who are able to administer medication, or due to exclusions or refusal to attend school. Some respondents argued that if flexibility existed to vary the number of learning hours a pupil received, they would support the proposal.

“As I work in a special school, it is quite a complex picture (which is recognised in the consultation paper). Many pupils just cannot attend for the prescribed number of hours for a range of reasons, and the flexibility to be able to meet needs is paramount. As needs become more complex across society, this flexibility is likely to be required in all educational settings… If the law is written in such a way as to allow flexibility, then I don't particularly see a problem.” - Teacher

Local authorities reducing learning hours for individuals without adequate safeguards was a concern to some respondents. They suggested the proposals needed to be reviewed against other policies impacting children, including the Equality Act 2010 and Additional Support for Learning (Scotland) Act 2004. Should a minimum be introduced, one respondent suggested a way to achieve flexibility could be to agree and record how many learning hours were to be delivered in the child’s or individual learning plan.

However, a few local authorities highlighted the importance of ensuring they also have flexibility. For instance, Perth and Kinross Council suggested local flexibility was sometimes necessary to accommodate rural transport requirements or to enable adapted provision for very young or older learners. One local authority reported on a survey they had undertaken with 33 senior school leaders. The findings concluded that flexibility was key to enabling innovative delivery models to address to challenges facing different communities.

9.4 Entitlements and exclusions

Prescribing a minimum number of learning hours would provide clarity on entitlement and therefore enhance a rights-based approach, according to several respondents. This would make it easier for families to understand what should be provided and to legally challenge situations where they felt it was not being applied. This theme was mostly raised in relation to children unable to attend school full-time, such as those with attendance issues or additional support needs. My Rights, My Say – a national partnership supporting the participation of children with additional support needs in educational decisions – cautioned against authorities reducing provision to the minimum for those requiring greater input.

The proposals were also felt to undermine the commitment in the Promise to end formal and informal exclusions for care-experienced pupils. CELCIS, the Centre of Excellence for Children’s Care and Protection, emphasised the importance of care-experienced children being in school and having positive relationships with staff to support positive learning and wellbeing outcomes.

“We would welcome clear guidance that underscores children’s rights to full-time education, the presumption of full entitlement as well as the safeguards and robust implementation of regular reviews and gatekeeping of exemptions.” – CELCIS

“The proposal that education authorities may deliver individualised, fewer number of hours without the need for an exemption raises concerns. Care experienced learners are already disproportionated affected by both formal and informal exclusion.” - CELCIS

9.5 Exclusions

Some respondents called for robust guidance on how the proposals would relate to exclusions.

One individual, responding as an education law specialist, discussed safeguards included in exclusion policies in Scotland. These included that: local authorities must provide specified grounds on which they wish to exclude a pupil and must provide alternative education; families have a right to appeal if they disagree; ‘Flexible packages’ can only be agreed following an appropriate assessment and education should still be provided for a recommended 25 hours in primary and 27.5 hours for secondary schools; a reduction in hours can only occur in very limited circumstances and should be ‘carefully negotiated’ i.e. agreed with the parent and child; and any reductions should be time-limited and carefully recorded and monitored.

However, this respondent noted that less protection is afforded in informal exclusions. Concerns were noted about how well these situations are monitored and regulated, with families disagreeing with a reduced timetable despite the authority claiming these were in the child’s best interests.

Given the above, they suggested legislative changes to address this issue.

“Section 2ZA(10) allows for the list at subsection 7 to be amended. Consideration should be given to adding the four key features 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.” - Individual

Enquire reported that two thirds of 88 enquiries about part-time education handled during 2022/23 disagreed with the decision taken by the local authority to reduce the timetable, though around a third agreed with the reduction. They noted that many families they engaged with felt their child could access more learning with the proper support in place.