Schools (Consultation) (Scotland) Act 2010: guidance

3. CONSULTATION

3.1 The basics

Notice and consultation period – section 6 of the 2010 Act

83. An authority must notify the relevant consultees of the proposal and the consultation period cannot commence until this has been done. The authority must also set a consultation period of at least 6 weeks, to include 30 days when the school is open to pupils. For example, if a consultation period commenced a week before the Easter holidays, the 30 day period would be calculated by excluding the Easter holidays, the early May bank holiday, if that is also a school holiday, and any intervening inset days. It might therefore last nearly 9 weeks in total.

The public meeting – section 7 of the 2010 Act

84. A public meeting at which the authority is represented must be held during the consultation period and advance notice given of its date, time and location to the relevant consultees and to HM Inspectors within Education Scotland. Maximum advance notice of the details of the public meeting is desirable. It is most efficient to give this information in the notice issued just prior to the start of the consultation period advising consultees of the proposal. A separate notice can be issued and would be necessary if the details changed or additional meetings were scheduled after the consultation had started.

85. The 2010 Act leaves the details of how the public meeting is conducted to authorities. In deciding when to hold the public meeting, authorities will wish to balance the need to give interested parties enough time to read and digest the proposal paper, in order to inform discussion and questions at the meeting, with the need to allow sufficient time after the meeting for those consulted to reflect and consider what response to make to the consultation. Unless there are good reasons to do otherwise it would be appropriate to avoid holding the public meeting during the first week of the consultation period and instead to arrange for it take place around half way through the period.

86. For the convenience of consultees and other interested parties, the public meeting should take place outwith normal/office working hours and at a convenient location.

87. If an authority considers it appropriate to hold more than one public meeting, for example, in each school that is affected by a proposal, the requirement in section 7(2) and this guidance applies in relation to each public meeting.

HM Inspectors’ Involvement – Section 8 of the 2010 Act

88. The 2010 Act provides for Her Majesty’s Inspectors of Education’s ( HMIE’s, now part of Education Scotland but retaining their statutory responsibilities as HM’s Inspectors of Education) involvement in the consultation process. The HM Inspectors’ main role is to prepare and submit to the authority a professional and independent report on the educational aspects of the proposal being consulted on. As this guidance is addressed to local authorities rather than to HMIE, it focuses on authorities’ responsibilities in relation to this section of the 2010 Act.

89. An authority will wish to engage with HM Inspectors before a consultation on a proposal is taken forward to ensure that practical arrangements are in place. For example, to ensure that papers and representations are sent to the appropriate person within Education Scotland. The three week period within which HM Inspectors must prepare and submit their report (unless the authority and HM Inspectors agree a longer period) does not commence until the proposal paper and representations received by the authority have all been forwarded to HM Inspectors.

90. The authority is required to send HM Inspectors a summary of the oral representations made at a public meeting and any other representations made to the authority. In most cases, an HM Inspector does attend the public meeting. However, the absence of an HM Inspectors’ representative does not invalidate a public meeting. Where an HM Inspectors’ representative does attend a public meeting it is important to emphasise to those present that he/she is doing so exclusively as an observer and cannot be asked to participate or offer any comment.

3.2 Questions, inaccuracies and omissions

91. Concerns about inaccuracies and omissions from proposal papers frequently arise and, where these are significant, can undermine confidence in any part of a proposal. It is important that authorities act quickly and openly to consider these and, if necessary, to correct information. This is underpinned by the requirements in section 5 of the Act. Section 5 has been significantly amended by the Children and Young (People) (Scotland) Act 2014 from 1 August 2014 ^[15] to place additional duties on an authority in this regard.

92. There is a requirement for the authority to consider any allegation of an inaccuracy or omission and determine whether the allegation has foundation. This determination and the reasons for it must be notified to the person who has raised the issue, and they must be invited to make any further representations if they disagree with the authority’s view (in terms of section 5(2)(aa) and (c)). Section 5(3) allows the authority to make a fresh determination if further representations are raised and to make a fresh decision as to whether or not to take action to address the inaccuracy or omission. The authority is required to inform the person who has made the further representations if they make a fresh determination or decision to address the inaccuracy or omission.

93. If the authority has found, either itself or through a concern being raised, that there is an inaccuracy or omission in the proposal paper, it must decide whether it relates to a material consideration relevant to the proposal. Where the omission or inaccuracy does not relate to a material consideration, in terms of section 5(4)(b), an authority may decide to take the action mentioned in section 5(5)(a) or (b) (to publish a corrected proposal paper, give revised notice of the corrected proposal in accordance with section 6 and send a copy of the corrected paper to HM Inspectors or to issue a notice to the relevant consultees and HM Inspectors providing the omitted information, or as the case may be correcting the inaccuracy, and if the authority considers it appropriate, extending the consultation period by such period as is reasonable by reference to the significance of the information provided or, as the case may be, the nature of the correction). Or the authority may take no further action, except by virtue of section 10(3) (which requires the consultation report to contain information as to any allegations of or actual omissions or inaccuracies in the proposal paper).

94. Where the confirmed inaccuracy or omission relates to a material consideration, there is a duty on the authority to correct it (in terms of section 5(4)(a)). There are two ways to correct information. In extreme circumstances, the omission or inaccuracy may be so significant that it would materially affect the consultees’ ability to understand or respond to the proposal paper. In such a scenario, the authority would be expected to withdraw the proposal and either abandon it or start again with a revised proposal paper for the full consultation period (in terms of section 5(5)(a)). If the authority issues a revised proposal paper, it is required to give notice of the revised proposal paper to relevant consultees. ^[16] Alternatively, for less significant corrections, the authority may issue an erratum or corrected proposal paper and send consultees and HM Inspectors a notice with the correct or omitted information. This issuing of a corrected paper or erratum note may include extending the consultation period if this is considered warranted (in terms of section 5(5)(b)).

95. As stated previously, the robustness of all information in the proposal paper is paramount to the process, and in some cases fundamental to the arguments for supporting the proposal under consideration. If the information is significantly inaccurate or missing, and if the information is material to the question as to whether to implement the proposal or not, the inaccuracy or omission would undermine the process.

96. Concerns under section 5 of the 2010 Act must be raised during the consultation period and the authority is expected to determine them as quickly as possible and before the end of the consultation period if possible. However, if a determination under section 5 is made when the consultation period has finished, and an inaccuracy or omission is found to relate to a material consideration relevant to the proposal, the authority is still required to either publish a corrected proposal paper or a correction notice. Where the authority opts to issue a correction notice, it must consider whether the correction requires an additional consultation period which would be treated as part of the original consultation period (in terms of section 5(6)). If a concern is raised after the end of the consultation period, the authority is not required to make a determination under section 5 and instead should address the issue in whichever manner it considers reasonable in the circumstances and in accordance with any other relevant statutory obligations, such as the Freedom of Information (Scotland) Act 2002.

97. Section 10 of the Act requires that all inaccuracies and omissions in the proposal paper, including allegations of these, are detailed in the authority’s consultation report. This should include a statement of the action taken in respect of these or, if no action has been taken, of that fact (and why).

Requests for additional information

98. In considering questions or requests for additional information or advice on the proposal, from parents or Parent Councils, authorities will be mindful of their obligations under the Scottish Schools (Parental Involvement) Act 2006. That Act places two specific duties on authorities – to give advice and information when a Parent Council reasonably requests it from them on any matter (section 11(1)) and 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 (section 12(1)).

99. Beyond those statutory obligations it is also important that authorities – as a matter of good practice and courtesy – attempt to answer all relevant questions and requests for additional information timeously and, as far as is reasonably practicable, before the end of the consultation period. This particularly applies where the question or request is raised by a relevant consultee. Doing so will enable people to digest and consider the answer and/or additional information provided, before submitting their consultation response.

100. In some cases the questions posed or requests for additional information will be personal, sensitive or relate to individuals, in which case it will be appropriate for the authority to keep its response entirely confidential. In other cases, however, authorities are encouraged to consider whether the matters raised and answers provided or additional information supplied would be of wider interest to other consultees. In the latter case, the authority should consider how best to share and publicise the material – perhaps via its website (the FAQ section or some other prominent part) or some other means.

101. It will also be good practice to publicise the corrected or additional information as widely as possible, for instance on the Council’s website.

3.3 The consultation report

102. The 2010 Act requires the authority to review the proposal consulted on in light of the written and oral representations it has received and HM Inspector’s report, and then prepare and publish its consultation report. ^[17] Section 10 sets out what the consultation report must contain. It should provide the number of written representations received, a summary of the written and oral representations made and the authority’s response to those representations, the full text of the HM Inspector’s report and finally a statement explaining how the authority has reviewed the proposal in light of the representations and HM Inspector’s report.

103. In addition, the consultation report must address inaccuracies and omissions raised under section 5, as set out above.

104. In the case of closure proposals, the consultation report must also explain the opportunity which people have for making representations to the Scottish Ministers in the event that the Council decided to close a school. The consultation report should make clear that they have a period of 3 weeks after the Council decision is taken to bring to Ministers’ attention any matter which they considered would justify the decision being called in under section 15(3) of the 2010 Act. This is explained more fully in section 4.

New or different option(s)

105. The consultation report must reflect the option or options that were included in the original proposal paper, or in a revised proposal paper, and consulted on. A genuine consultation process should, of course, allow for new or revised ideas or options to emerge during the process, and some variation is reasonable. However, the consultation report should not contain an altogether new or different option that consultees have not had the opportunity to respond to for the authority to take a decision on. If a new or revised option, which is significantly different to anything set out in the proposal paper, emerges during the process, an authority should either suspend the consultation and issue an erratum or revised proposal paper and extend the consultation period, or prepare a revised proposal paper and begin the consultation process again.

3.4 Rural aspects

106. Special requirements apply to preparing the consultation report on a rural school closure proposal. Following the consultation period, when the authority is reviewing its proposal under section 9(1) to the 2010 Act, the authority is required to carry out a further assessment for the proposal and each of the alternatives that were set out in the proposal paper (in terms of section 13(5)). This involves an assessment of the same matters that the authority was required to assess in formulating the proposal (under section 12A(2)(c)): the likely educational benefits, the likely effect on the community and the likely effect of different travelling arrangements. The purpose of this further assessment is to take into account any further information that has come forward through the consultation or otherwise.

107. The authority is also required to make this assessment for any new reasonable alternative to the proposal that has been suggested through the written representations.

108. In its consultation report, the authority is required to explain its assessment of the proposal and the reasonable alternatives that it identified, how this assessment differs from their earlier assessment (if at all); and its assessment of any further reasonable alternatives. Finally, the authority is required to confirm whether it considers the implementation of the proposal (wholly or partly) to be the most appropriate response to the reasons for the proposal. The authority must give its reasons for this conclusion (section 13(6)).