The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021: children's rights and wellbeing impact assessment

Children’s Rights and Well-being Impact Assessment Stage 1

Screening - key questions

(Hyperlink will only work within SG)

1. Name the policy, and describe its overall aims.

Implementation of The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021 

We are amending the Education (Appeal Committee Procedures) (Scotland) Regulations 1982 (“the 1982 Regulations”), the Education (Placing in schools etc. - Deemed Decisions) (Scotland) Regulations 1982 (the “Deemed Decisions Regulations”) and the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005. The purpose is to amend the timescales introduced by the Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 (“the 2020 Regulations”) and the Education (Deemed Decisions) (Coronavirus) (Scotland) Amendment Regulations 2020, but retain the ability of education authorities to hold appeal hearings remotely which the 2020 Regulations introduced. This will take effect for the 2021 school admissions round and we have undertaken to make a further review in advance of the 2022 admissions round.

The 2020 Regulations, introduced in response to the coronavirus pandemic, made changes to the deadlines for local authority consideration of placing requests and placing request and exclusion appeals and to provide increased flexibility in how appeal hearings are conducted. This was to ensure that local authorities were able to support the delivery of the placing request and subsequent appeal hearing process during the current coronavirus outbreak while maintaining parents’ right of appeal in relation to placing requests and exclusions.

The 2021 Regulations maintain the provisions that allow remote appeal hearings but either reduce or remove the extended timescales permitted in 2020. 

2.  What aspects of the policy/measure will affect children and young people up to the age of 18?

The Articles of the UNCRC and the child wellbeing indicators under the Children and Young People (Scotland) Act 2014 apply to all children and young people up to the age of 18, including non-citizen and undocumented children and young people. 

The placing requests process is used by a significant minority of parents who apply to their local authority for a place for their child at a school that is not their catchment area school. For parents who are unsuccessful in their placing request, they can appeal the decision and, if necessary, attend a hearing of an Education Appeal Committee (EAC) who will review the authority’s decision and decide whether to overturn it or not. 

The changes going forward for 2021 retain the ability to hold hearings remotely and some of the flexibility for local authorities in how long they have to process placing requests and to convene appeal hearings, which were introduced in 2020. Under the proposed changes to the regulations for 2021 an EAC has to organise an appeal hearing within 2 months after being notified that the parent wishes to appeal. 

We expect most placing requests and appeals will take place as quickly as possible but there are likely to be some children whose appeal against a refusal of a request for a place either at primary or secondary school is not resolved until after the new school year begins in August. This may affect a small number of children’s entry to primary school or transition between primary and secondary school.

In order to properly evaluate how the school admissions process operated in 2020, we requested data from all 32 local authorities via COSLA, ADES and SOLAR. This would provide a clearer picture around the number of placing requests and appeal hearings.  We have received data for the 2020 admissions round from 25 local authorities which showed that by October 2020 when the data was received from local authorities, 5 appeal cases had not been resolved and a Sheriff appeal was expected. It demonstrates that the extended timeframes enabled placing requests to be processed effectively despite the impacts of the pandemic. Some local authorities reported that they processed placing requests along the original timescales where possible. 

The amendments to the regulations which were made by the 2020 Regulations also provided extensions to the time periods for education authorities to hold exclusion appeals raised by parents or young people.  Data received from local authorities showed that all exclusion appeal hearings undertaken in 2020 were completed within the new timescales that applied. The 2021 Regulations do not affect parents or young people’s ability to appeal against an exclusion decision. 

3. What likely impact – direct or indirect – will the policy/measure have on children and young people?

‘Direct’ impact refers to policies/measures where children and young people are directly affected by the proposed changes, e.g. in early years, education, child protection or looked after children (children in care). ‘Indirect’ impact refers to policies/measures that are not directly aimed at children but will have an impact on them. Examples include: welfare reforms, parental leave, housing supply, or local transport schemes. 

We expect most placing requests and appeals will take place as close as possible to the original timeframes but it is possible that there will be a small number of  children whose appeal against a refusal of a request for a place either at primary or secondary school is not resolved until after the new school year begins in August. This may affect a small number of children’s entry to primary school or transition between primary and secondary school. This will be an indirect impact on children and young people as the provisions in the regulations relate to how a parent exercises their right of appeal if they disagree with the Council’s response to a placing request.  

Underpinning these changes is the need to abide by social distancing measures that are in place currently, and the likelihood that some form of these restrictions may continue to apply in parts of Scotland during spring and summer 2021. Face-to-face appeal hearings are restricted at the moment and by providing greater flexibility in how hearings are conducted, including using video or audio conference technology, we are ensuring hearings can go ahead without contravening the current social distancing restrictions which are in place to protect everyone’s health.  Coronavirus restrictions also impact local authority staff and may continue to limit their capacity. We also recognise that local authorities still face exceptional burdens in dealing with the impact of the coronavirus emergency, hence these efforts to retain some of the increased flexibility.

As noted above, these were intended to be temporary measures but we have had to maintain them, albeit to a lesser extent, for the 2021 admissions round, due to the continuing pandemic. We plan to conduct a further review to the changes made by these Regulations before the 2022 admissions round, to again consider whether the passage of the virus means that it is possible to revert to the provisions that applied prior to the 2020 Regulations.  It will also be appropriate to give consideration to retaining the flexibility to conduct placing request appeals remotely, as this appears to have been welcomed by both local authorities and parents.

In respect of exclusion appeals, the 2021 Regulations provide flexibility in how those hearings can be conducted, in order to meet the needs of the young person or parent/carer.  The 2021 Regulations will also provide local authorities with the flexibility to hold the exclusion appeal hearings in light of the continuing impact of the COVID pandemic. 

Therefore, the impact of the new provisions and amendments will be limited to those families making a placing request during the 2021 school admissions round, other in year placing requests and exclusion appeals up until February 2022.  

4. Which groups of children and young people will be affected?

Under the UNCRC, ‘children’ can refer to: individual children, groups of children, or children in general. Some groups of children will relate to the groups with protected characteristics under the Equality Act 2010: disability, race, religion or belief, sex, sexual orientation. ‘Groups’ can also refer to children by age band or setting, or those who are eligible for special protection or assistance: e.g. preschool children, children in hospital, children in rural areas, looked after children, young people who offend, victims of abuse or exploitation, child migrants, or children living in poverty.

We do not have any data that shows the characteristics of parents who make placing requests or make appeals. Therefore it is not possible to say with any certainty whether any particular group of parents will be affected more than others. The purpose of the changes is to ensure that all parents who make an appeal can continue to do so, albeit to a longer timeframe than was provided for before the 2020 Regulations came into effect. We would not expect there to be any differential effects of these measures.

In relation to pupils with additional support needs, while we do not have any data to indicate that this group of children and young people will be more affected by these changes, anecdotal evidence would suggest that these changes may have a greater impact on children and young people with certain additional support needs.

Similarly for exclusions, no data is collected on the characteristics of parents or pupils who may appeal any exclusion from school.  Numerically, exclusions have fallen year on year, with the rate of exclusions now less than half that of 2006/07.  It is anticipated that the number of exclusion appeals in this period will be low.

5. Will this require a CRWIA?

Explain your reasons.

A CRWIA is required since this policy development and legislation will have an impact upon on a significant number of children and young people (we estimate 2,000 to 3,000 children), therefore a CRWIA is necessary.

CRWIA Declaration

Tick relevant section, and complete the form.

CRWIA required X – CRWIA required

CRWIA not required

Authorisation

Policy lead

Jerry O’Connell

School Policy Team Leader

Workforce, Infrastructure and Reform Division (WIR)

Date 22 January 2020

Deputy Director or equivalent

Clare Morley (on behalf of Andy Drought, Deputy Director, WIR Division)

Unit Head 

School Funding, Infrastructure and Organisation, WIR

Date 22 January 2020