Presumption to provide education in a mainstream setting: guidance

3 Deciding on The Right Provision For A Child Or Young Person

38. This chapter is primarily aimed at education authority decision makers and looks to support local authorities in making decisions on where a child should learn.

39. Information for parents and carers can be found on the Enquire website. This includes fact sheets on Choosing a School and Placing Requests.

Legal Context

40. Under the legislative framework there are three core elements – education, support and wellbeing. Taken together, these frameworks require education authorities to consider a wide range of issues for children and young people. Education authorities need to:

• Make provision that is directed toward the development of the personality, talents and mental and physical abilities of the child to their fullest potential;^[2]
• Have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities, prevent discrimination against pupils with disabilities and make reasonable adjustments for individual children to ensure equality of opportunity in learning. The technical guidance for Schools in Scotland provides guidance on the requirements under the Equality Act 2010;^[3],^[4]
• Plan for accessibility of the curriculum, school information and physical access^[5];
• Identify and provide the support required to enable individual children and young people to overcome barriers to their learning, including looked after children and young people^[6];
• Consider the wellbeing of children and young people^[7].

41. Annex A provides more detail about the legislative and policy landscape. The table attached at Annex B sets out the main pieces of legislation related to deciding where a child should learn and areas that should be considered when making these decisions.

Presumption To Provide Education In A Mainstream Setting

42. The presumption to provide education in a mainstream setting has been in legislation since 2003 reflecting a move towards a children's rights based approach. Section 15 of the Standards in Scotland's Schools etc. Act 2000 provides that a preschool and school aged child should be educated in a mainstream school unless one of three circumstances set out in section 15 apply. The three exceptions are that it would not be suited to the ability and aptitude of the child; would be incompatible with the provision of efficient education for the children with whom the child would be educated or would result in unreasonable public expenditure being incurred which would not ordinarily be incurred. Section 15 provides that it shall be presumed that those circumstances only arise exceptionally and that if one or more of them do arise, that the education authority may still provide education in a mainstream school but that they won't do this without taking into account the views of the child and the child's parents.

43. Section 15 is a continuing duty and can apply at any time there are decision making points about where a child should learn. Children and young people usually attend the school within their catchment area or the early learning and childcare setting of their parent or carers' choice. However, in some circumstances the education authority may propose that another school, including a special school, may be more appropriate to meet the needs of the child or young person. This decision can happen before starting at an early year and childcare setting, primary school or secondary school or any point in between if there are concerns that the current setting isn't meeting the child or young person's needs. Parents and carers can make placing requests to education authorities to ask for their child to be admitted to a particular school. Placing requests are usually made when a child is starting primary or secondary school, but they may also be made at any other point in a child's learning journey. This reflects the circumstances in which a child attends a school, but it is found that the school is unable or becoming unable to meet the child's learning needs. The different types of school are described in more detail below.

44. The legislative and policy landscape has evolved over time, reflecting increasing aspirations for Scotland's children and young people and changes in practice. This is also the case in the way in which learning is delivered across the country. In Scotland, there is a range of provision available to meet children and young people's additional support needs.

45. These include:

• Mainstream school provision;
• Special school provision;
• Provision where the pupils' needs are met through a mixture of provision, either within a unit within a mainstream school or through a mix of two different provisions. This forms a package of learning and support to meet individual needs, often referred to as flexible provision or shared provision.

46. Mainstream schools are organised by catchment area, and consist of primary and secondary schools. Some mainstream schools also have a unit or base within them.

47. 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^[8]. 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.

48. The balance of provision varies from local authority to local authority and has developed due to local contexts, geography and communities and in line with the duty to provide adequate and efficient provision.

49. Schools are often organised into clusters consisting of local primary schools and the associated secondary school. This provides an opportunity for schools to learn from each other in relation to provision of support for pupils. Special schools have a wealth of experience in differentiated learning which may be shared with other schools in the cluster.

50. The glossary referenced in Annex A provides definitions for mainstream schools, special schools and other terms such as grant-aided special schools and independent schools.

51. In addition to these two main types of provision, there is in practice, within a number of local authorities, a further approach whereby a child or young person needs are metbetween two types of provision. For the purposes of this guidance, we will use the term flexible provision. Flexible provision can be, for example:

• Where a pupil attends a mainstream school and a unit within another school or learning establishment (for example a third sector service);
• Where a pupil attends a special school and also has some time in a mainstream setting;
• Where an older pupil attends school and college as part of a full-time timetable;
• Where an older pupil attends school and also benefits from vocational opportunities as part of their full-time education.

52. This list provides examples of different types of flexible provision and is not exhaustive. It should be tailored to the individual circumstances, needs and strengths of each child and young person.

53. In all circumstances these provisions are about meeting the identified needs of the individual child or young person concerned. Placement decisions should be part of a wider consideration starting from the child's needs, what supports will enable them to develop and then where this can be provided. Children and young people and their parents/carers have the right to express their views in relation to decisions that affect their education. This includes the decision on the type of provision made to meet the pupil's learning needs although ultimately decisions on placement are for local authorities to make. The education authority has to consider those views alongside professional assessments and recommendations regarding the child's needs.

54. In good practice, this would be informed by key partners such as health, social care and third sector organisations where appropriate. There should be a partnership, multi-agency approach to meeting the needs of all children and young people under the Getting it Right For Every Child approach. Deciding on the provision that best meets the needs of the child is a complex task that requires everyone involved to take the time to get to know the child well and make a decision on a timely basis, reflecting the legally defined timescales for placing request decisions.

55. The decision should also be reviewed on a regular basis to ensure that it is still meeting the needs of the child. Assessment and planning is a dynamic process and whether current provision is still suitable for a child must be reviewed on a regular basis. Particular care should be taken with transitions into and out of different provisions. The Supporting Children's Learning Code of Practice sets out the statutory guidance on the duties around transitions.

56. The table at Annex B includes suggested considerations to be taken into account when assessing the most appropriate provision for an individual child or young person. This should prompt a greater focus on the learning environment and the extent to which it can support the child or young person to be present, participating, achieving and supported. If these questions highlight that there are concerns about whether mainstream is the right setting for the child then there should be an in-depth exploration of the duties under section 15 and the exceptions set out in section 4 of this document. The further questions under the exceptions at section 4 should help to increase the transparency of the decision making process, particularly for children, young people and their parents or carers.