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

Children’s Rights and Well-being Impact Assessment Stage 3

CRWIA title: Implementation of The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2021. 

Date of publication: 22 January 2021

Executive summary

We are amending The Education (Appeal Committee Procedures) (Scotland) Regulations 1982, The Education (Placing in schools etc. - Deemed Decisions) (Scotland) Regulations 1982 and The Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005 in order to reduce the timescales introduced in April 2020, whilst retaining the flexibilities for holding remote appeal hearings. 

To mitigate the potential impacts on children and young people during the 2021 admissions round, whilst the provision for remote hearings has been retained, the extended timescales permitted in 2020 have been reduced. 

This is to ensure that local authorities are able to support the delivery of the placing request and subsequent appeal hearing process during the current coronavirus outbreak.

It is intended that these regulations will be in place temporarily for the 2021 school admissions process and for exclusion appeals. We have undertaken to review the changes made by the 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.  

Background

Most parents will opt to send their children to their local catchment school. Parents have the right to submit a placing request to apply for a place in a school other than their catchment school. Local authorities have to follow statutory criteria when assessing placing requests and making decisions about whether to grant a placing request or not. If a parent disagrees with an local authority’s decision to refuse a placing request they can appeal to the local authority convened Education Appeal Committee (EAC). Statutory timescales apply to the stages of this process with most appeals taking place in May and June, so that the bulk of the decisions are made before the end of the summer term and parents have certainty about which school their child will attend in August. If parents are unhappy with the panel’s decision they have a right of appeal to the Sheriff Court though only relatively few will opt to do this. For placing requests to a special school, including a support base or unit, and/ or where the child has a co-ordinated support plan, the appeal would go to the Additional Support Needs Jurisdiction of the Health and Education Chamber of the First-tier Tribunal for Scotland.

Local authorities were concerned about their ability to deliver an effective placing request and consequent appeals process and exclusion appeals process during the current coronavirus outbreak. This is due to resource pressures and availability of local authority staff and EAC members. The social distancing requirements currently in place also made it necessary to find new ways of holding appeal hearings which were normally held face to face. 

Whilst many of these factors are continuing we have concluded that the same extension of timeframes from the 2020 admissions round will not be necessary in 2021. This approach will still give education authorities and education appeal committees enough flexibility to complete the processes successfully. The retention of the flexibilities in how appeal hearings can be conducted also gives education appeal committees greater scope to complete the appeal hearings within a more limited timeframe, though still longer than in previous years. 

The revised timescales for the 2021 admission round will limit the potential impacts upon children as the vast majority of placing request appeals will be heard before the beginning of the school year.  This will provide parents, as well as children and young people, with greater certainty about the outcome of their placing requests ahead of the new school year.

Exclusion appeals are following the same timescales as the placing request appeals process, this will continue to ensure that the needs of children and young people and parents/carers are met, whilst providing the flexibility for local authorities to undertake the exclusion appeal hearings. 

Scope of the CRWIA, identifying the children and young people affected by the policy, and summarising the evidence base

Due to the limited availability of research evidence the evidence base for this CRWIA is limited.

We have gathered information and feedback from local authorities to better understand the impact of the new timeframes during the 2020 school admissions round. In total, 25 local authorities responded, reporting that 21,587 placing requests had been received. Following decisions on these placing requests and appeals by parents, 627 appeal hearings were conducted across the 25 local authority areas.  

Whilst not all local authorities responded, it shows that substantial numbers of placing requests were successfully processed during spring/summer 2020. Very few appeal hearings, 0.7%, were not held by the relevant extended deadline. 

The information provided for the additional support for learning placing requests follow a similar pattern to the above, showing that the majority of local authorities have dealt with these swiftly and without particular issues in terms of timescales.

We also sought information from local authorities on the impact of the changes to the regulations on exclusion appeals.  Twenty local authorities responded as follows: 12 exclusion appeal hearings took place, of these eight were by video conference, three by audio conference and one in writing. Seven exclusion appeals were not heard within the four month deadline due to staff working from home due to COVID restrictions. All of the exclusion appeals reported have been resolved. Few comments were provided by authorities, however those that did welcomed the extended timeline for exclusion appeals.  No concerns have been raised by parental groups. 

Children and young people’s views and experiences

We have engaged extensively with local authorities and parents’ representatives.

Key Findings, including an assessment of the impact on children’s rights, and how the measure will contribute to children’s wellbeing

Overall, the new regulations will have a neutral effect on the rights of the vast majority of children who will be unaffected by these temporary measures for 2021. 

We have put in place mitigations to reduce the likelihood of delayed outcomes by giving education appeal committees greater flexibility in how they conduct appeal hearings so that virtual or paper-based methods can be used. The regulations will also require, despite the continued relaxation of certain deadlines, that appeals are expedited as soon as practicable. Given the unprecedented nature of the current situation we believe this is a balanced and equitable solution for all involved. The evidence from the 2020 admissions round highlights that local authorities abided by the requirement to take them forward “as soon as reasonably practicable” and did not use the 2020 extensions to their limit. The shortening of these extensions for the 2021 admissions round substantially increases the likelihood of both mainstream and ASL placing request processes being completed prior to the beginning of the new academic year, minimising the impact of potential delays on children and young people affected.

Monitoring and review

The impact of the new regulations will be monitored closely while they are in place. We have established a working group with key local government bodies COSLA, ADES and SOLAR to support implementation of the new regulations and to monitor progress. 

CRWIA Declaration

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