Schools (Consultation) (Scotland) Act 2010: guidance

2. PREPARATION FOR CONSULTATION

2.1 The basics

What type of proposal is being made?

9. It is important to be clear what type of proposal is being made, to understand whether and, if so, how the 2010 Act applies to it. The types of “relevant proposals” covered by the Act are defined in paragraphs 1 to 10 of schedule 1 to the Act, and further detail on these is set out in section 5.2 of this guidance. Authorities should consider whether schools or stages of education will be closed or, as the case may be, established. For some scenarios, for example, where two schools are being brought together on a single site, there can be questions as to whether one or both schools is being relocated or closed, and if there is doubt, it will be helpful to get legal advice at an early stage. In determining what type of proposal is involved it is important to understand the proposed management arrangements and whether, therefore, a school(s) continues as the same entity or changes.

10. These examples may be helpful:

• A new school is to be built in the grounds or adjacent to the existing school, which will then be demolished. This would not require a consultation, as the school address and management does not change.
• A new school building is to be built on a new site, and all the pupils and staff will transfer to the new building. This would be considered as a relocation, not a closure.
• Two schools are to move to a new joint site. Depending on the proposed management arrangements, this might be considered to be a closure and a relocation (if the new school is to retain the name and management of one of the schools), two closures and the establishment of a new school, or, if the site is to be a shared campus and both schools will retain their existing management arrangements, two relocations.
• A standalone nursery is to be incorporated into a local school as a nursery class. This would be considered as the closure of the nursery school and the establishment of a new stage of education, a nursery class, at the school.

11. The 2010 Act applies to a proposal which affects a nursery class or nursery school (under the management of the education authority) in the same way that it applies to all other “relevant proposals” as defined in Schedule 1 to the 2010 Act, and references to “school” in this guidance include a nursery school. The authority should take care to ensure that any proposal for the relocation or closure of a school which includes a nursery class clearly explains the impact of the proposal on the nursery class. The proposal paper and consultation report should reflect and take into account any issues which are specific to the nursery class.

Is a rural school closure involved?

12. The authority must consider whether any rural school will be closed as part of the proposal, by checking whether the school is listed on the Rural Schools List maintained by Scottish Ministers. ^[4] If the proposal does involve a rural school closure, the special provisions in sections 11A to 13 of the 2010 Act apply. More detail on these is given in sections 2.5, 3.4 and 4.2 of this guidance. Specific further steps require to be taken for rural school closures. Authorities may also want to consider taking some of these steps for schools that are not designated as rural, as they are intended to ensure that the consultation and the reasons for the closure proposal are examined as thoroughly and rigorously as possible.

Attention to detail

13. It is essential that authorities seek and achieve high standards both in the information that underpins school consultations and in the consultation documents that are published. These will be examined closely by communities, school staff and parents, and errors in details can easily undermine confidence in a proposal. It is a key learning point from the Commission on the Delivery of Rural Education’s work that a failure to provide accurate, high quality consultation documents has led to consultations being abandoned, taking much longer than expected and to increased conflict with communities. Significant inaccuracies in the information in consultation documents for a closure proposal could also be grounds for a decision to be called in by the Scottish Ministers.

14. When an authority is using statistics or data to support an argument it must ensure it only makes comparisons where the statistics or data is measured and presented on a like for like basis. For example, comparable statistics on the ‘condition’ of schools across different authorities is possible because there is detailed national guidance available to all authorities. Particular care should be taken that data relates to the same time period or that any differences and inconsistencies are transparently explained. For example, it would not be appropriate to have some costs covering an academic year and others relating to a financial year, or to use pupil roll data from one year and costs from another.

15. Other areas of difficulty can include allocating central or shared costs for the education authority to individual schools, and accounting for one off maintenance costs which occurred or are projected to occur in a single year but do not recur. Further guidance on presenting financial information, including how to address these areas of potential difficulty, are provided in the financial template referred to in section 2.4. High standards of transparency on how costs have been treated are important, to ensure stakeholders have confidence that costs have been allocated reasonably and consistently.

Timescales for proposals

16. Consultations under the 2010 Act take a significant length of time, particularly where a school closure is involved and if the requirements for rural school closure proposals apply. A sample timeline is available on the Scottish Government website. ^[5] It is important to discuss a proposed timetable with Education Scotland ( HM Inspectors of Education ( HMIE)) at an early stage to ensure that they can allocate an HM Inspector to the proposal and that they are able to complete their report on the proposal without delay to it or disrupting other work. Time must also be allowed for closure proposals to be referred to Ministers – for up to eight weeks – and the possibility that these might be called in. If the proposal is called in, it would be referred to the School Closure Review Panels which would have eight weeks, or up to 16 weeks if further time is required, to determine the proposal.

17. When planning a consultation, it is important that authorities consider not only the requirements of the 2010 Act but the impact on the children and young people most directly affected by the proposal.

18. There needs to be sufficient time from the date of the final decision, taking into account the possibility that it might be called in by Scottish Ministers, for the authority to ensure that effective transitional arrangements for children and young people are in place. A timeline that would allow very little time to confirm the school that children and young people would attend in the next school session could be detrimental to their education. In such cases, unless there is overwhelming support for such a proposal, there is a strong probability that HM Inspectors would be critical of this in the Education Scotland report. While there may be occasions when this is not necessary or possible, as a general guideline it will be important to have at the very least a full term to work with children and young people on transition arrangements, and this will require the staff involved to have a further period beforehand in which to prepare for this work. Even where the authority considers there is a high likelihood that a closure decision will be taken, firm transition planning can only take place once there is certainty for all involved. Particular sensitivity is required where there has been a high degree of opposition to a proposal.

19. Authorities will also wish to consider the most appropriate point in the school year for a transition. For a school closure where children and young people will move to another school this would preferably happen at the beginning of a new school year. In other circumstances, for example a relocation to a new building, the issues will be mainly practical and could depend, for example, upon a construction timetable.

Grouping proposals

20. Authorities are required to prepare a proposal paper to set out the detail of the relevant proposal or proposals. In order to minimise confusion, authorities should only consider grouping together more than one proposal in a single paper if the proposals are connected. If proposals are not strongly linked, separate proposal papers would be more appropriate. Different issues and concerns are likely to arise during the course of the consultation process in relation to each school involved. It is important that the authority takes separate decisions on the proposals at the decision making stage of the process – i.e. can accept one or some of the proposals whilst refusing one or some of the other proposals. It is also sensible to be able to adjust the timetable of proposals separately if necessary. Publishing separate consultation documents for each closure proposal will make this possible.

Other statutory obligations relating to education

21. A local authority has other statutory duties relating to the provision of education in its area which it requires to fulfil and therefore needs to consider when assessing proposals to change the way in which education is delivered in its area. The Educational Benefits Statement is the place for the authority to set out the relationship between a proposed change and these other statutory duties regarding education – and how what is proposed fits with the continued fulfilment of these other obligations. The following list of statutory duties is illustrative rather than exhaustive:

Education (Scotland) Act 1980 , section 1 of which requires authorities to secure for their area adequate and efficient provision of school education; section 17 of which deals with sufficient school accommodation and sections 22C and 22D of which deal with change to the provision of denominational education (see guidance in section 4.3).

Standards in Scotland’s Schools etc. Act 2000 , section 3 of which requires authorities to endeavour to raise standards and secure improvement in the quality of school education provided in their schools. Section 2 of this Act states that it is the duty of the education authority to ensure that the education it provides is directed to the development of the personality, talents and the mental and physical abilities of the children or young people to their fullest potential.

Education (Additional Support for Learning) (Scotland) Act 2004 and the Education (Additional Support for Learning) (Scotland) Act 2009 . These Acts require authorities to identify and provide support for any children with additional support needs and prepare co-ordinated support plans for those with the most extensive needs. This is a critically important group of pupils whose particular needs require special consideration.

Scottish Schools (Parental Involvement) Act 2006 , section 11 of which requires authorities to give advice and information when a Parent Council reasonably requests it from them on any matter. Section 12 requires authorities to give advice and information to a parent of a school pupil when reasonably requested, on any matter relating to the education provided to that pupil.

2.2 Pre-consultation and consulting particular groups

Pre-consultation

22. Sometimes known as informal consultation or pre-statutory consultation, “pre-consultation” can cover a range of engagement with communities regarding a proposal before a formal 2010 Act proposal paper is published. It is not a substitute for, nor does it reduce any of the requirements for formal consultation under the 2010 Act. However, pre-consultation can play an important part in information gathering and sharing in advance of a statutory consultation. It is often this type of participation which really engages and empowers communities to understand and help shape the proposals that affect them. For example, pre-consultation can be a good opportunity to consult the community on detailed aspects of the proposal and seek to resolve these ahead of formal consultation. There is a particular need for engagement with communities in preparing and informing a rural school closure proposal, and this is considered further in section 2.5.

23. There are many different approaches to pre-consultation, from an extension to the authority’s regular engagement with parent councils to consider concerns regarding a school’s future and possible options, to an authority issuing a pre-consultation paper on a wider range of possible options for the school estate before refining which of these should become statutory proposals. In the latter case, it is important to handle these options carefully. For example, sometimes an authority chooses to pre-consult on a wide range of possible options, which may seem fairer than focusing on a single area. However, if there is little likelihood that some of these options would ever be taken further, a broad approach may simply generate concern and opposition, and distract effort from working out the details of the proposal that the authority does intend to take to consultation. A disadvantage to pre-consultation is that the process set out in the 2010 Act does not apply to it. This, and the lack of access to those requirements during pre-consultation (for example, to challenge inaccuracies), can leave communities frustrated. For this reason, it may be more challenging for highly controversial proposals.

24. It is important for authorities to consider how to engage constructively with communities in advance of statutory consultation, so that the statutory consultation is not a surprise to the community and addresses the issues that concern them.

Consulting with children and young people

25. One way of seeking to ensure that Scotland’s children and young people become responsible citizens, a cornerstone of Curriculum for Excellence, is by helping them to understand the decisions that are made about and for them by adults, by involving them and by ensuring that they have an opportunity to have their say. The Commissioner for Children and Young People and Children in Scotland produced, in light of the 2010 Act, guidance aimed at assisting local authorities in undertaking their duty to consult children and young people. It is designed to ensure best practice across Scotland and is available at the following link:

http://www.sccyp.org.uk/uploaded_docs/participants%20not%20pawns.pdf

26. The 2010 Act requires pupils to be consulted in so far as the authority considers them to be of suitable age and maturity (for example, in relation to closure proposals, in terms of schedule 2, paragraph 1(d)). Authorities should be aware of Article 12 of the UN Convention on the Rights of the Child which gives a child the right to express a view on matters that affect his or her life and to have that view taken into account, and to consult children and young people wherever possible. The focus should be on where children and young people do have capacity and where decisions are of interest to them – some proposals will be technical or of little interest to some categories and ages of pupil.

27. The 2010 Act therefore requires the views of children and young people to be sought and taken into account on an equal basis to other statutory consultees and there is a clear expectation that authorities will make all reasonable efforts to ensure that the greatest number of children and young people are meaningfully consulted, in ways that are appropriate to their age and maturity. They should also consider how best to provide feedback to children and young people on how their views have been taken into account in the Council’s final decision. This should be done in an accessible and age-appropriate way that will help them understand the process and how and why the decision has been taken.

28. Pupil councils are relatively commonplace throughout Scottish schools and in many cases will provide an ideal platform for proposals to be shared and views to be expressed and captured. The authority should, however, consider a range of means for communicating and consulting with children and young people of varying age groups and levels of maturity.

29. It is important to ensure that parents and carers are fully informed and, where appropriate, they give consent to consultation with children and young people, and that the children and young people are given an appropriate opportunity to reflect on and consider the issues they are being consulted on.

30. Evidence of an authority not making all reasonable efforts to ensure that the greatest number of affected pupils have been meaningfully consulted on a closure proposal may result in Ministers calling in the decision.

Consulting parents

31. Parents are a key group for the authority to consult, in relation to any change affecting schools. The authority is required to consult the Parent Council of any affected school and the parents of pupils at any affected school, as well as the parents of any children the authority expects to attend any affected school within two years of the publication of the proposal paper. Parents are likely to have strong opinions on the current education provision as well as strong concerns regarding the proposal and its impact on their children. It is important that the authority works with parents from the outset of a proposal to answer their concerns and provide the information they seek.

Consulting widely

32. The 2010 Act prescribes a detailed list of “relevant consultees” who must be consulted on a proposal under the Act. More detail on the “relevant consultees” is given in section 5.3 of this guidance.

2.3 Educational benefits

33. The 2010 Act reflects the Scottish Ministers’ view that educational benefits should be at the heart of any proposal to make a significant change to schools. Consequently, the 2010 Act specifies that the local authority must, for all consultations, prepare an Educational Benefits Statement and publish it within the proposal paper. The 2010 Act requires authorities to consider current and future pupils of any affected school, current users of its facilities, and the pupils of other schools in the authority’s area; and also to explain how the authority intends to minimise or avoid any adverse effects of the proposal. The authority must also include its reasons for reaching the views which it sets out regarding the educational benefits. Reasons should be supported by evidence, including, for example, HM Inspector reports or condition or suitability ratings of the schools involved, to assist consultees in their understanding of the projected educational benefits.

34. It is important that the closure of a school, or other relevant changes covered by the 2010 Act, is proposed for positive educational reasons, and that these are set out for each relevant proposal. The authority is required to produce a comprehensive Educational Benefits Statement that clearly sets out the benefits that would accrue for the children and young people affected.

35. The impact of a proposal on a range of educational factors will rarely only give rise to benefits – any proposal is likely to involve both pros and cons. The Educational Benefits Statement is the place for the authority to explore that balance. However, the local authority must demonstrate why the proposal is of overall positive educational benefit to the pupils of the affected school(s), children who would be likely to become pupils at the school(s) and other pupils in the authority area. Consultees reading the Educational Benefits Statement, including of course an HM Inspector within Education Scotland, should be able to clearly identify details of the benefits that would accrue from implementation of the proposal. It is likely that an Educational Benefits Statement which is too brief or general and fails to identify specific benefits to the pupils of the affected school would result in criticism by HM Inspectors and/or a proposal being called in by Scottish Ministers.

36. HM Inspectors within Education Scotland have prepared guidance ^[6] and a self-evaluation toolkit which authorities may find helpful in developing an Educational Benefits Statement. While HM Inspectors cannot advise local authorities on preparing specific proposals – given their duty to report on the proposal under section 8 of the 2010 Act and their duty to advise the Scottish Ministers – they can support authorities more generally in building capacity to carry out these tasks and in planning timelines for consultations. Past HM Inspector reports on 2010 Act proposals also provide a sound guide to the Educational Benefits Statements which have met their expectations, and these reports are all published on Education Scotland’s website. ^[7]

Effect on different school users

37. The 2010 Act specifies that the authority must set out, within the Educational Benefits Statement, its assessment of the effect of the proposal on a range of school users. The first such group is the pupils at the affected school or schools. It applies to all pupils, not just some. It will often be important for an authority to distinguish between different groups – for example, those with additional support needs – and how a proposal may benefit/impact on them differently. An affected school would include a school proposed for closure either in its entirety, or in part (e.g. where a stage of education was proposed to be discontinued), as well as the receiving school to which the pupils from the area would attend in the future. Where the proposal was to establish a new school, those schools whose rolls would be consequently reduced or changed as a direct result of the new school should be counted as affected schools. Proposals to change catchment areas (which are not subject to Ministerial call in) normally also affect more than one school – and in some cases schools from across neighbouring authorities. In such cases authorities will want to consider carefully how any proposal might have a consequential effect on other schools.

38. The Educational Benefits Statement must also assess the impact of the proposal on other users of the school’s facilities. That may include, for instance, adult or community users, who perhaps attend school-based classes, or users of a school’s theatre or hall or sport and recreation facilities. The authority must also consider and set out the impact of its proposals on children or young people who would have been likely to have become pupils of the school, if the proposal is not implemented. In the case of a primary school, that would generally be those children who would within two years be expected to attend, or in the case of a secondary school, those children in its associated primary schools. However, authorities should consider the interests of any and all children and young people they know may come into this category.

39. Finally, the authority is required to set out its assessment of the likely effects of the proposal – its potential implications and consequences – on some or all of the pupils in other schools across the authority’s area. Care should be taken to ensure that any such benefits are appropriately specific and can be clearly understood by consultees. For example, sometimes a relatively small saving is projected and it is indicated that it would benefit other pupils in the area. It is important, if that type of saving is included, to be clear that the likely impact on those other pupils would be minor compared to the impact on the pupils directly affected. In such a case, it would be important that the Educational Benefits Statement focused on the educational benefits to the pupils directly affected. As the Commission on the Delivery of Rural Education noted, “it is important to avoid an argument that any cost saving from a closure would leave more funds for other educational purposes and have an educational benefit for the majority of children in the area, as this could be an argument against many aspects of rural service provision. Remoteness should always be a key consideration, recognising the impact of moving education provision an unreasonable distance from any community.”. ^[8]

40. In assessing the likely benefits and effects on users, authorities will want to take into consideration a range of factors which will vary from case to case and in scale, depending on the particular circumstances and the type of proposal being consulted on. In many circumstances, the affected groups will not necessarily share a common benefit from what is proposed. In these cases, it will be important that the Educational Benefits Statement demonstrates clearly how the authority has identified and intends to balance these diverse interests. An overall picture of the benefit (or disbenefit) for each of the categories of user set out in section 3(1)(a)(i) to (iv) should be set out, and it is important that this demonstrates a clear educational benefit from the proposal. It is expected that this would normally focus on the children and young people directly affected by the closure.

Factors to cover in the Educational Benefits Statement

41. Neither the 2010 Act nor this guidance are framed in a way that either lists or limits the range of factors that may be relevant in the case of a particular proposal, that an authority might take into consideration and/or articulate in the Educational Benefits Statement. The Scottish Government expects that the rationale and arguments offered in the Educational Benefits Statement and in the whole of the proposal paper, will be set within the context of an authority’s statutory duties. These include (but are not limited to) those set out in paragraph 21 above and in this section.

42. Also of relevance will be the way a proposal sits within the context of a range of national and local policies. Curriculum for Excellence sits at the heart of what both national and local government are looking to achieve in terms of raising levels of achievement and attainment, and improving educational outcomes for all children and young people. It is intended to nurture successful, effective, confident and responsible young people, able to learn and utilise learning in a way that helps them reach their full potential and to respond to the increased variety and pace of change in today’s and tomorrow’s world.

43. In preparing the Educational Benefits Statement, authorities will want to set out how a proposal will improve the quality of the curriculum and create positive environments for more effective learning and teaching that is better matched to the needs of children and young people. The Educational Benefits Statement should focus on how the proposals will improve the depth, breadth, coherence, relevance, challenge and enjoyment provided by the curriculum. It should also demonstrate how opportunities for greater personalisation and choice in learning and improved progression will enhance learning experiences. This may include the use of information and communications technology (ICT) and arrangements for assessing and planning learners’ progress. Authorities will want to consider setting out clearly how approaches for meeting children and young people’s learning, personal, social, health and emotional needs will be improved as a result of implementation of the proposal. A particular aspect is the need to set out the ways in which support for children and young people who require additional support with their learning ^[9] will be improved. In making such cases the council may make reference to relevant legislation such as the requirements of the Education (Additional Support for Learning) (Scotland) Act 2004 and Education (Additional Support for Learning) (Scotland) Act 2009.

44. Authorities will want to consider setting out the intended positive impact of the proposal on the overall morale and ethos of the school, including the care and welfare of children and young people and their personal and social development. A key aspect for an authority to consider is the positive impact of the proposal on ensuring equality of opportunity for all within an inclusive educational experience (see further detail on the Equality Act 2010 in paragraph 61). The authority also needs to consider setting out the ways in which access to improved accommodation and facilities will bring improvements to the learning environment for children and young people.

45. Where appropriate, authorities will want to consider how the proposal enhances and builds leadership and leadership capacity within the schools covered by the proposal and improves arrangements for planning and taking forward improvements through effective self-evaluation. Authorities may also consider the ways in which the proposal may improve partnership working and liaison between schools.

46. Other potentially relevant issues in connection with educational benefit might include (but are not limited to):

• the condition and suitability of the school buildings and facilities (and where a proposal would involve children and young people moving from one school to another, the relative condition of both);
• changing patterns of demand for school places if there is a mismatch between supply and demand; and
• the travel and transport context and implications of a proposal if, for instance, it would affect pupils’ broader social experiences and opportunities to participate in and benefit from out-of-hours learning.

47. Financial and budgetary considerations may also be relevant in situations where the costs of the delivery of education have reached the point where an authority considers that they require to be reviewed.

Personal or attributable information

48. In the Educational Benefits Statement, sensitive or personal information that could be linked to or attributed to individuals – for instance, individual pupils – should be avoided, although it is recognised that this may be more difficult where very small numbers of individuals are involved. The objective should be to couch the text of the Educational Benefits Statement in such a way as to avoid the identification of individuals and focus on the generic or on groups or categories of persons affected.

49. While the Educational Benefits Statement provides the local authority with the opportunity to set out the educational case for their proposal, the proposal paper itself is where the authority can and should set out all the other contextual and relevant evidence and information around and in support of the proposal. This can be presented alongside the Educational Benefits Statement in the published proposal paper.

2.4 Proposal paper

50. Section 4 of the 2010 Act sets out the statutory requirements for a proposal paper.

Factors to cover in the proposal paper

51. In considering what material to include in the proposal paper (in addition to the educational case set out in the Educational Benefits Statement) an authority may wish to explain what has given rise to consideration of the matter being consulted on and why it has decided upon the particular proposal set out for consultees (and this is a requirement in the case of a rural school closure proposal, under section 13(2) of the 2010 Act). An authority’s School Estate Management Planning ( SEMP) process (described in more detail in paragraph 62 of the guidance) can play a key role in helping to frame that explanation. The proposal paper would be an appropriate place to make reference to how the proposal fits into this wider authority planning. It may also want to explain clearly why the change is required, what other reasonable alternatives have been considered and why these have been rejected. More detail on the special arrangements for rural school closure proposals is given in section 2.5 of this guidance.

52. The authority should ensure the proposal paper provides sufficient detail on areas likely to be of concern to communities. This would include a clear travel plan for pupils, including identifying safe routes to the new school location and providing clarity, where relevant, on school transport that will be provided and traffic management around the school site(s). If the travel plan has not yet been finalised, the authority would be expected to include as much detail as possible of what its proposed travel plan would be, with information on how and when it expects to finalise the plan. The proposal paper should also be clear on the authority’s plans for the future use of any school building and associated facilities that will be released by the proposal. It is reasonable for communities to be concerned whether a school building would have another public purpose, be available for the community, sold or might remain vacant for a significant period, and authorities should provide as much certainty and transparency as possible.

Financial information

53. There is a new requirement that all proposal papers for school closures published from 1 August 2014 must include information about the financial implications of the proposal (section 4(2A) of the 2010 Act). The purpose of this requirement is that information on all likely financial implications should be provided in a clear, complete and consistent form for all school closure proposals, rigorously evidencing any financial argument that is deployed.

54. Authorities are strongly recommended to base their financial information on the financial template ^[10] which has been developed by COSLA in close collaboration with local authorities. The template is a direct response to recommendation 22 of the Commission on the Delivery of Rural Education and is supported by the Scottish Government. The template has been trialled with a number of authorities but any further feedback is welcome. Comments on the template should be sent to COSLA or to the Scottish Government School Infrastructure Unit ( schoolestate@scotland.gsi.gov.uk ), and this feedback will be helpful in updating and improving the template as experience is gained applying it to different scenarios.

55. It is expected that the financial information provided should include both actual costs and a narrative. This narrative should explain the costs as well as covering other relevant factors which do not have a direct cost estimate.

56. The financial information required will depend on the circumstances of the proposal. For example, where one school is to be closed and the pupils are proposed to move to another existing school, the actual current costs for the school proposed for closure should be given. These should cover a full financial year and assume that the school remained open for the full year. The additional financial impact on the receiving school as a result of taking in extra pupils should also be given for a full financial year. By taking the second set of costs from the first, the annual recurring saving or cost of the proposal can be calculated. However, many scenarios may be more complicated than this, for example, where two schools are to be closed and a new school built, where the children and young people are to be dispersed to more than one receiving school or where only a stage of education is to be closed. The template is designed to be flexible, with authorities adding to and omitting parts of the ‘standard information’ to make it best suit a particular closure proposal.

57. Data should also be given on the capital costs of the school(s) proposed for closure and the receiving school(s). Care should be taken to ensure that these are comparable and reflect the expected life cycle of a school, as costs are unlikely to be evenly spread through its life cycle. Annual property costs for a closed school before it is disposed of should also be given; and any non-recurring revenue costs.

58. The impact of the closure, if any, on the authority’s Revenue Grant from the Scottish Government should also be given. Revenue Grant is based on a Grant Aided Expenditure ( GAE) formula with almost 100 categories. One of these is most relevant to school closures, the Primary School Teaching Staff line, which has a secondary indicator based on pupils in primary schools with fewer than 70 pupils. Authorities should indicate clearly whether GAE is likely to be affected by the proposal, the reasons for their view, and the level of this impact, providing a narrative explanation where appropriate.

59. There are some costs which it would be less appropriate to include, such as central management support costs within an education department. A closure of a school is unlikely to lead to a reduction in these costs and any such costs allocated to a school proposed for closure would not normally constitute a real saving.

Capacity

60. The Scottish Government has worked with local authorities to prepare guidance ^[11] to assist authorities in determining the capacity of their primary schools, with the aim of providing a clearer and more consistent approach to calculating the capacity of schools across the country. Authorities are recommended to take this guidance into account, which will allow comparison not only within an authority but across Scotland.

Other legislation

61. There may also be legislation - other than that directly relating to matters educational - that is relevant to the proposal and its context. This includes:

• Local Government in Scotland Act 2003 , section 1 of which sets out what a local authority is expected to demonstrate in fulfilment of a series of obligations placed upon it. One such obligation is the duty to secure best value by continuous improvement in performance of the authority’s functions, while maintaining an appropriate balance between quality and cost and having regard to economy, efficiency, effectiveness, equal opportunities and the achievement of sustainable development.
• An authority may wish to demonstrate how a proposal helps to fulfil this duty and to achieve best value by setting out clearly cost benefit analyses of the financial and budgetary factors and implications of the proposal. Aspects of this may already have been covered in the Educational Benefits Statement but if there are cost issues which go beyond the purely educational, the proposal paper is where these should be set out, again, with full financial details and supporting evidence where these are significant factors in relation to the proposal.
• Equal opportunity legislation – it will also be important in the proposal paper to set out how the proposal assists the authority in fulfilling its obligations under the Equality Act 2010. An authority must ensure that it complies with the public sector equality duty, including the duty under regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 to carry out an equality impact assessment of applying a proposed new or revised policy or practice.

School Estate Management Planning

62. Building Better Schools ^[12] , is the Scottish school estate strategy which sets out the shared vision of national and local government of creating and maintaining a school estate which is fit for purpose, in good condition, well designed and accessible to all parts of the community. Local authorities’ School Estate Management Plans ( SEMPs) form a cornerstone of the strategy for the future of the school estate in Scotland. The plans should be an essential tool to local authorities for the proactive, effective and efficient management of their school estate. They should provide a focus for identifying and drawing together needs, priorities and funding streams to enable authorities to modernise and sustain their estate. Long term strategic changes to the school estate, such as a need for rationalisation in particular areas, should be part of this process and will help provide a context to support specific decisions to consult on individual proposals. It will also be important to link to an authority’s wider estate management strategy and opportunities for co-location and integration of services.

Mothballing

63. In considering alternatives to closure, authorities may choose to consider “mothballing” a school (or a stage of education or a nursery class at a school). This is a temporary closure which does not lead to a consultation under the 2010 Act. It is only appropriate in very restricted circumstances. When a school roll falls very low, the authority and/or community may consider that the school is not presently viable but do not wish to close it immediately because there is a reasonable prospect that the number of pupils in the area will increase such that it should be re-opened in the future.

64. It is vital that this flexibility to close a school for a temporary period is not used to undermine the requirements under the 2010 Act to consult on all school closure proposals. Mothballing is only appropriate for a temporary period and should be subject to regular review, at least annually, against the same requirements which led to the original decision to mothball the school (or stage of education). The maximum length of its duration is likely to depend on the location of the school and the desirability of maintaining capacity to re-open a school there, but it is unlikely that it should exceed 3 years in areas that are not very remote. The condition of the school building and cost of maintaining the mothballed provision will also be relevant.

65. A school can be mothballed where the school roll has fallen to zero and continues to be zero. It may also be appropriate where the roll or potential roll is very low and the authority considers the only other option to be closure. However, in circumstances where a school is mothballed rather than closed and some children and young people remain in the catchment area, this decision should be taken in consultation with the parents involved, and the possibility should be raised as early as possible, in order to ensure that families can understand the options open to them. Mothballing should not be a way of denying parents access to the statutory consultation process required under the 2010 Act and if the majority of parents oppose mothballing, it would be appropriate to move to statutory consultation on closure as soon as possible.

2.5 Rural aspects

Presumption against closure

66. Sections 11A to 13 of the 2010 Act (as inserted into that Act or as amended by section 80 of the Children and Young People (Scotland) Act 2014 ^[13] ) make specific requirements for rural school closures, and these take effect from 1 August 2014. It will be essential for authorities considering proposing a rural school closure to understand these new requirements before formulating a proposal.

67. Section 11A provides that the authority may not decide to close a rural school unless it has complied with the requirements in sections 12, 12A and 13 and is satisfied that such a decision is the most appropriate response to the reasons it has identified for making the proposal. Section 11A is referred to as a “presumption against closure”, as compliance with specific requirements is necessary before a closure decision can be made. Section 12 requires an authority to carry out very thorough consideration of why it wishes to close a rural school prior to consulting on a closure proposal, to assess all reasonable alternatives to closure, and only to proceed, following consultation, if the authority is satisfied that the closure proposal is the most appropriate response to the issues identified.

When do the new requirements apply?

68. The requirements for rural school closure proposals set out in sections 11A to 13 of the 2010 Act as amended apply to all closure proposals for rural schools that are published from 1 August 2014. Proposals which were published before 1 August 2014 are not subject to the new requirements in sections 11A to 13. ^[14]

69. This means that there were a small group of ‘transitional’ rural school closure proposals for which the authority published the proposal paper prior to 1 August 2014, and which completed their consultation and decision making processes in accordance with the requirements in the 2010 Act prior to the amendments to that Act made by the Children and Young People (Scotland) Act 2014.

Preliminary requirements for rural school closures

70. An authority that is formulating a rural school closure proposal must satisfy the preliminary requirements set out in section 12A of the 2010 Act before starting to prepare its proposal paper. It must identify the reasons for formulating the proposal. These will be the key challenges which the school faces and the authority requires to address. The authority is required to consider these reasons when making its decision on a proposal or any reasonable alternatives, so it is important that these are clear and as specific as possible. For example, reasons might relate to a falling school roll, difficulties delivering the curriculum or concerns about the school building. Rather than simply stating that the school is no longer viable, the authority is expected to set out the reasons why it considers the school to no longer be viable.

71. There is a new duty on the authority in terms of section 12A(2) to identify any reasonable alternatives to the proposal which might also address the reasons for the proposal. Full consideration should be given to including “maintaining the current school” as an option here unless it is clear that this would not address the reasons for the proposal. The authority is required to invite representations on these alternatives as well as suggestions for other reasonable alternatives (in terms of the additional consultation requirements in section 13(3)(b) and (c)).

72. The authority is required to assess, for the proposal and all reasonable alternatives that have been identified:

• the likely educational benefits;
• the likely community impact (assessed in accordance with section 12(4)); and
• the likely effect of any different travelling arrangements (assessed in accordance with section 12(5)).

73. The authority cannot make a decision as to whether to proceed to consultation until these preliminary requirements have been carried out and unless they are satisfied that that implementation is the most appropriate response (section 12A(4) to the 2010 Act). It is for the authority to determine how to meet these requirements and whether this requires formal or informal engagement and consultation with the school and community. It is expected that this type of engagement would lead to higher quality proposal papers and better statutory consultations.

Identifying reasonable alternatives

74. The policy intention here is to ensure that when an option to close is proposed, the decision to consult on that option is only taken after very careful consideration, and after all other reasonable alternatives have been considered. Early engagement with the local community and others with an interest will allow an authority to fully consider all suggestions and provide a clear assessment of the merits of these suggestions and their viability. Preliminary, informal discussions (pre-consultation) with members of the affected school and the affected community are a recommended way of establishing possible alternatives. It is important to ensure that all reasonable alternatives that the authority identifies are properly explored before the authority proceeds to consult on closure.

75. Schools are major public and community assets; it is important that their future is considered not just from an education perspective but across the full range of an authority’s responsibilities. Consideration of alternatives to closure could include whether there is scope for the school to be better integrated into an authority’s wider asset management and community planning processes. This could, for example, include building effective links with local community regeneration strategies. Examples of alternatives to closure that might merit consideration include:

• using the school as a ‘community hub’ where it accommodates and supports provision of a range of community services, e.g. health, community education, sport, recreation, social and cultural activity etc.;
• how the school roll might be increased, for example, by realigning catchment areas, or encouraging or supporting community initiatives aimed at attracting employment or other inward migration to the area;
• how recruitment to teaching posts in remote areas might be improved;
• whether other management options might be a possibility, e.g. joint management arrangements between the authority and the local community, or input to the running of the school from other sources;
• suspension of consideration of a closure proposal for an agreed period to enable a community time to instigate a project/initiative aimed at, for example, increasing local development or employment opportunities in the community, which in turn may increase the viability of the school.

76. Once the authority has identified all the “reasonable alternatives”, the authority is required to assess their educational benefits, community impact and effect on travel arrangements. This might be along similar lines to the assessment of the educational benefits for the proposal, to be included in the Educational Benefits Statement. However, HM Inspectors are not required to report on the educational benefits of the reasonable alternatives.

77. The proposal paper must set out the alternatives to the proposal that the authority has identified, give the authority’s assessment of these and explain why the authority considers, in the light of that assessment, that implementation of the closure would be the most appropriate response to the reasons for the proposal. The authority is required to consult on these alternatives and whether there are any further reasonable alternatives, by informing consultees of the alternatives and their opportunity, firstly, to make representations regarding these as well as the main proposal, and, secondly, to suggest further alternatives (in terms of section 13(3)).

Likely effects of closure on the local community

78. The authority is then required to assess the likely effect of the school’s closure on the local community (assessed in accordance with section 12(4)) – whether closure of the school will affect the local community’s sustainability and whether the asset of the school’s buildings, facilities and grounds would still be accessible, or lost, to the community. Whilst the quality of educational experience of affected pupils remains the primary consideration, the purpose of this requirement is to ensure that the future of a rural school is also considered in the wider context of rural development planning and the sustainability of rural communities.

79. There are many considerations that are likely to be relevant in terms of community impact, for example:

• whether closure would encourage families with school-age children to leave the community or discourage young families from moving to the community;
• what impact closure might have on other services provided locally, for instance if the school is the only remaining public building in a community;
• whether, or not, the school is a real hub of community life, used for other purposes – such as public meetings, local events, fetes, surgeries, and other get-togethers – which would either cease or be diminished by being required to move elsewhere.
• whether, or not, the loss of the school, and potentially families, would have a detrimental effect on the wider economy of the community.

80. Early engagement and communication with the local community is a good way of establishing and understanding all of the relevant factors.

Likely effects of different travelling arrangements as a result of closure

81. The authority is required to assess the likely consequences of the closure on travelling arrangements (assessed in accordance with section 12(5)) of the school’s pupils, staff and other users, and the effect on them as well as the overall environmental impact (for instance, as a result of increased car or bus usage). Relevant considerations in terms of the affected pupils include their health and wellbeing and impact on their education. For example, if pupils would be less able to walk or cycle to school, or less able to participate in pre- and after-school clubs or activities. In some instances longer journeys to school may increase the likelihood of bad weather impacting on home to school travel.

Steps taken to address the reasons for the proposal

82. The proposal paper for a rural school closure has one further significant additional component. As well as explaining the reasons for the proposal, there is a duty on the authority to set out the steps it has taken, if any, to address these reasons before formulating the proposal . For example, the reason for the proposal might be the falling roll at the school and understanding what action, if any, the authority has taken in the past to seek to address this would help to understand whether such measures should be tried now, or have little prospect of success. Additionally, if the authority has not taken any steps to address the reasons for the proposal, the authority is required to explain why it did not do so (in terms of section 13(2)(c)).