Schools (Consultation) (Scotland) Act 2010: guidance

4. DECISION

4.1 The basics

Further consideration – section 11 of the 2010 Act

109. The purpose of section 11 of the 2010 Act is to ensure that a period of three weeks elapses between the authority’s publication of the consultation report and the Council actually taking the decision on whether to implement the proposal(s). The intention is that interested parties should have time to see and digest the contents of the consultation report and also have time if they so wish to make the authority aware of final issues and opinions regarding its decision.

110. The Council’s decision is taken on the day that the decision is binding for the authority. This will depend on the decision making structures within the individual authority. In some authorities, these decisions are taken by the full Council, but in other authorities, the decision will be taken by a committee with the possibility that the committee’s decision might be reviewed by another committee or the full Council. Once the authority’s decision is final, the authority will confirm the date that it was effective from in the notice it publishes under section 15(2A).

Notification and notices

111. When an authority takes a decision to approve a school closure proposal, section 15(2) and (2A) requires it to notify Scottish Ministers, within 6 days of making the decision, and place a notice on its website of this fact and of the opportunity to make representations to the Scottish Ministers.

112. When the authority notifies the Scottish Ministers, it is required under section 15(2) to provide copies of the proposal paper, the consultation report and, where the decision relates to a rural school, the notice the authority has published under section 11A(3) of the 2010 Act.

113. The notice the authority publishes should provide the appropriate contact details for submitting representations: schoolclosure@scotland.gsi.gov.uk or post to The Scottish Government, School Infrastructure Unit, 2A (South), Victoria Quay, Edinburgh, EH6 6QQ. It should also specify the deadline for making representations to the Scottish Ministers. ^[18] This is calculated as three weeks from the decision date, including that day, therefore if a decision is taken on Tuesday, 1 March, the three week period ends at midnight on Monday, 21 March.

Next steps

114. Following the Council’s final decision, there are three weeks for stakeholders to make representations either against or in support of the closure. In making a representation, it will be important to understand the grounds on which Scottish Ministers could call in a decision. These are set out in section 17 to the 2010 Act and are that

“it appears to the Scottish Ministers that the education authority may have failed:

“(a) in a significant regard to comply with the requirements imposed on it by (or under) this Act so far as they are relevant in relation to the closure proposal, or

“(b) to take proper account of a material consideration relevant to its decision to implement the proposal.” ^[19]

115. Representations which clearly set out concerns that are relevant to these possible grounds, if it is considered that they may be valid, will be more likely to result in a decision being called in.

116. The Scottish Ministers understand that school closure decisions can be emotive and attract wide community interest, sometimes leading to high volumes of requests for call in or petitions. All representations are welcome, and of course these indicate the level of community feeling and concern. Nevertheless, the number of representations is not of itself a reason for the Scottish Ministers to call in a closure proposal, and it is the evidence of a failure under section 17(2)(a) or (b) of the 2010 Act as set out above that will decide whether a case is called in. Therefore, a single detailed representation providing evidence of a potential failing may carry much more weight than a number of representations raising issues which would not amount to potential failures in terms of the grounds specified in section 17(2)(a) or (b).

Considering whether to call in a decision

117. The Scottish Ministers have (from 1 August 2014) a period of eight weeks ^[20] following an authority’s decision in which to decide whether to call in the decision or not (the three week period for representations plus a further five weeks). If the Scottish Ministers do not make a decision by that deadline, the implementation of the proposal is automatically permitted to go ahead. Normally, if Ministers decide not to call in a proposal, for the avoidance of doubt and to allow proposals to be taken forward expeditiously, Ministers write to the authority before the end of the eight week period to confirm that they do not intend to call-in a proposal and they try to do that as early in the further five week period as they can.

118. The purpose of the five weeks is to allow Ministers to consider all the evidence available to them from the documents submitted by the authority and all representations, if any, received and to reach a conclusion as to whether there appears to be a failure under section 17(2)(a) or (b) as set out above.

119. Ministers will want to consider any issues raised in the HM Inspector’s report and also any issues that are apparent from the consultation report. It may be helpful for Ministers to consult HM Inspectors at this stage, and HM Inspectors are required, under section 17(3A), to provide Scottish Ministers with any advice which they reasonably require at this stage. Equally, Ministers may follow up issues with the education authority, which has a duty (under section 17(3) to the 2010 Act) to provide any information in connection with the closure proposal which Ministers may reasonably require for their consideration at this stage. The purpose of Ministers’ consideration at this stage is to seek maximum clarity so that cases need not be called in unnecessarily.

Decisions which are called in

120. If Ministers decide to call in a closure proposal, they must refer it to the Convener of the School Closure Review Panels (section 17A(2)) for determination by a School Closure Review Panel. The authority may not implement the proposal (wholly or partly) unless the Panel has granted consent to it (with or without conditions) and either the period for making an appeal to the sheriff has expired or, if an appeal has been made, it has either been abandoned or the sheriff has confirmed the Panel’s decision (section 17A(4)).

4.2 Rural aspects

121. Section 11A makes specific requirements in relation to an authority’s decision to implement a rural school closure proposal. The authority may only decide to implement the proposal (wholly or partly) if it has complied with the requirements in sections 12, 12A and 13 (relating to formulating a rural school proposal and consulting on it) and is satisfied that such implementation is the most appropriate response to the reasons it identified for formulating the proposal.

122. Following a decision as to whether or not to implement a rural school proposal, section 11A(3) requires the authority to publish a notice on its website of that decision. Where the authority decides to implement the proposal, the notice must also give the reasons why it is satisfied that such implementation is the most appropriate response to the reasons it identified for formulating the proposal.

123. This notice must be sent to the Scottish Ministers, under section 15(2)(b)(iii), when the authority notifies Scottish Ministers of its decision to implement a rural school closure proposal. As that notification must be made within six working days starting with the day on which the decision is made, this has the effect of requiring the notice under section 11A (3) to be published within the same timescale.

4.3 Referral to the Scottish Ministers

Grounds for call in

124. As stated earlier, the grounds on which Ministers may call in a closure proposal are set out in section 17 of the 2010 Act. These are very limited. Call in is permissible only where Ministers consider that the education authority may have failed to comply with the requirements imposed on it under the 2010 Act in a significant regard; or where the education authority has failed to take proper account of a material consideration relevant to its decision to implement the proposal.

125. The 2010 Act does not further define what might or would constitute a ‘material consideration’ (in terms of section 17(2)(b)) – any particular closure proposal will be considered on a case by case basis. This Ministerial power is intended as a safeguard, in closure cases, to help to ensure that the consultation and decision-making processes and procedures are fairly, fully, correctly, openly and transparently carried out. The following examples are, however, included by way of illustration of the sort of issues and scenarios that could constitute a material consideration relevant to an authority’s decision to implement a closure proposal (these are by no means exclusive or exhaustive):

• a school closure proposal is consulted on so far in advance of its implementation date that it would not be possible to identify all of the children and young people that would be affected or that consultees might not engage fully with a proposal that was a very long period into the future. The timeframe that is reasonable will vary – for a new school, there may well be a long planning phase;
• a consultation on a proposal to close a school that contains a special support unit, which includes details of where pupils in the mainstream section of the school would move to if the proposal is implemented, but does not contain appropriate information regarding the pupils at the special unit;
• a consultation on a proposal to close a school, which contains details of one alternative school but no details on another school which could reasonably be considered as a suitable alternative, where evidence would suggests that it is a popular school that parents are already choosing to send their children to (instead of the school proposed for closure or the school formally proposed as the alternative); or
• a consultation that fails to take account of the number of times when the road between the school proposed for closure and the alternative school would be shut due to bad weather (in an area where this was a known occurrence) – meaning that the pupils could not get to the new school.

126. In their consideration of whether or not there may have been a failure on the part of the education authority to comply with the requirements imposed on it by (or under) the 2010 Act, Ministers are also required to consider whether any procedural failure amounts - or could amount - to a failure in a significant regard. The 2010 Act does not define what might be a “failure in a significant regard”. An example might be a consultation that failed to notify all the relevant consultees in one of the groups set out in schedule 2, paragraph 1. Ministers would consider how significant the omission was, and a consultation that had failed to make reasonable efforts to notify the parents of the pupils at an affected school would be likely to be considered to have a significant failing, whereas a consultation that had failed to notify one parent might not be considered significant, especially if it was clear that the information had been available to the parent from other sources.

127. Since the grounds for call-in focus entirely on the activities of the authority, much will depend on how the authority has responded to concerns raised by consultees or by HM Inspectors. For example, how the authority reviews the proposal in light of these issues and how it reaches and explains its overall conclusion and final decision on the proposal is important.

128. A uthorities are required to provide the Scottish Ministers with such information as they may reasonably require in relation to their consideration of whether to call-in the closure proposal (section 17(3)). Similarly, HMIE is required to provide Ministers with such advice as they may reasonably require as to the educational aspects of a closure proposal (section 17(3A)).

4.4 Determination by a School Closure Review Panel

School Closure Review Panels

129. The 2010 Act, as amended by the Children and Young People (Scotland) Act 2014, establishes School Closure Review Panels, an independent public body with responsibility for considering school closure decisions which are called in by Scottish Ministers.

130. Schedule 2A to the 2010 Act sets out detailed arrangements regarding the Convener of the School Closure Review Panels and the Panels. The Convener is appointed by the Scottish Ministers. The Convener has responsibility for appointing people who are eligible to be Panel members. When a case is referred to the Convener, the Convener is required to constitute a Panel for the purpose of reviewing that case. Each Panel is to consist of three of the people eligible to be appointed to a Panel, and the Convener is to select these people. The Convener is also to select one of the Panel members to chair the Panel. Once the Panel has been constituted, it is for the Panel to consider the case, seeking any advice and information that they require, and reaching their decision. The Convener is not involved in the Panel’s decision.

Referring a closure proposal to a School Closure Review Panel

131. If the Scottish Ministers decide to issue a call-in notice, they must refer the closure proposal to the Convener of the School Closure Review Panels. The Convener is required to constitute a School Closure Review Panel to review the proposal within 7 days of the proposal being referred to him.

132. The Scottish Ministers will send to the Panel their call-in notice, as well as all the representations and other evidence that Ministers received in connection with the school closure decision. The School Closure Review Panels took up these new responsibilities from 30 March 2015, and irrespective of when a school closure consultation started, if it is called in by the Scottish Ministers on or after 30 March 2015, it will be referred to the Convener for determination by a Panel.

133. The Panel is required to review the totality of the authority’s decision, and to consider both:

“(a) whether the education authority has failed in a significant regard to comply with the requirements imposed on it by (or under) this Act so far as they are relevant in relation to the closure proposal,

“(b) whether the education authority has failed to take proper account of a material consideration relevant to its decision to implement the proposal.” ^[21]

134. These are the same grounds which apply to the Scottish Ministers’ call-in decision. However, while the Scottish Ministers consider whether the authority "may have failed" in relation to either ground, the Panel must consider whether the authority "has failed" in relation to either ground.

135. In carrying out its review, the Panel has the power to require the education authority to provide such information as the Panel may reasonably require (section 17B(2)). The Panel also has the power to require advice on the educational aspects of the proposal from HMIE, and to request information and advice from any other person for the purposes of its consideration of the case (section 17B(3) and (4)). There is a power for Ministers to set out further provision as to the procedures to be followed by the Panels in regulations. Ministers have no role or powers in relation to the Panel’s decision.

Timescales

136. A Panel is required to notify the education authority of its decision within 8 weeks of the Panel being constituted. This period can be extended if, before the end of the 8 week period, the Panel issues a notice saying that a decision will not be reached within that period, giving a reason for that, and indicating the likely date when a decision will be notified to the authority. This extended date must be within 16 weeks from the date the Panel was constituted.

Determinations

137. A School Closure Review Panel has three possible decisions open to it:

• it may refuse consent to the proposal referred to it. If the Panel reaches this decision, the five year restriction on repeating a closure consultation would apply to the school, under section 2A(2)(a)(ii) of the 2010 Act;
• it may refuse consent to the proposal and remit the proposal back to the education authority for a fresh decision. This gives the authority an opportunity to address the concerns that have led the Panel to refuse consent. The Panel is required to specify any steps that the authority must take again before reaching a fresh decision. In carrying out these steps again – for example, the authority might need to undertake a fresh or revised consultation – the authority must comply with all the requirements of the 2010 Act. If the authority reaches a new closure decision, that decision would be referred to the Scottish Ministers to consider whether it should be called in. The five year restriction on repeating a closure consultation does not apply; or
• it may grant consent to the proposal, either subject to conditions or unconditionally . Where the Panel imposes conditions, the authority is under a duty to comply with these conditions (section 17C(8)).

138. The Panel may only refuse consent, or refuse consent and remit the proposal back to the authority, if it has found that the authority has failed in a significant regard to comply with the requirements on it or that the authority has failed to take proper account of a material consideration relevant to its decision to implement the proposal.

139. The Panel is required to give reasons for its decisions.

Appeals

140. The education authority or any relevant consultee in relation to the closure proposal (listed in Schedule 2 to the Act) may make an appeal to the sheriff against a decision of a School Closure Review Panel, under section 17D of the Act. This appeal may only be made on a point of law, that is to say, alleging that the Panel has erred in law in its decision. Appeals must be made by summary application, which is a particular type of sheriff court procedure which provides for cases to be considered promptly. An appeal must be made within 14 days of the Panel publishing its notice of its decision.

141. The sheriff may either confirm the Panel’s decision or quash it and refer the matter back to the Panel, and the sheriff’s determination is final.

4.5 Restriction on repeating school closure proposals

142. Authorities are expected to seek to maintain a stable school estate, with strong community engagement around prospective changes well in advance and in such a way as to provide stability and certainty for children and young people, parents and the wider community. School closure consultations can have a substantially damaging effect on a school community. It is important that they are carried out properly and decisively so that communities receive a clear outcome and can adjust to that, rather than facing the prospect of a proposal nearly succeeding and then being repeated until it does eventually succeed, possibly due to the repeated nature of the process eroding opposition.

143. Section 2A of the 2010 Act (inserted by section 77 of the Children and Young People (Scotland) Act 2014) provides for a restriction on making a school closure proposal in relation to the same school for a period of 5 years following either:

(a) a decision to refuse closure…; or

(b) a decision made by the education authority following the publication of consultation report not to proceed with the closure.

144. Section 2A came into force on 1 August 2014. This means that any decision taken on and from that date (either by the authority not to implement the closure proposal or by the School Closure Review Panels to refuse consent for closure) is affected by this restriction. ^[22] Article 4 of The Children and Young People (Scotland) Act 2014 (Commencement No. 2, Transitional and Transitory Provisions) Order 2014 ( SSI No. 165) clarifies that no restriction applies in regard to decisions taken before this date.

145. Section 2A is intended to provide a period of certainty and stability for a school that has been threatened with closure, its pupils, parents and community, by setting a minimum period before a closure proposal in relation to that school can be repeated.

146. However, the authority may still decide to repeat the school closure proposal. It may do this at the end of the five year period, in which case the authority may only publish a proposal paper when the period has expired. It would be acceptable for the authority to undertake preparation for consultation before the restriction has expired, for example, informal consultation with the community or preparation of the consultation documents.

147. Alternatively, if there has been a significant change to the school’s circumstances, the authority may, in terms of section 2A(3), proceed with a closure proposal within the five year period of the restriction. Examples might include, but are not restricted to, where the parents request the authority to take this action, where the school roll falls very significantly, or where the school building requires urgent, significant investment. However, even in these circumstances, the authority will want to consider whether it would be better to wait until the five year period has expired, or whether mothballing the school or another solution would be more appropriate.

148. Following a consultation under the 2010 Act, occasionally an authority may decide that the elements of the proposal should be revised before it takes a decision as to whether to implement the proposal or not. In some cases, this will be a small revision which the authority concludes does not require further consultation. In other cases, the change may be such that further consultation is considered appropriate before the authority takes its decision. It may be however that a change is so significant that it would mean that the authority was in effect making a decision not to implement a closure proposal in terms of the 2010 Act, and that it was making a wholly different proposal which would therefore require the authority to start the process from the beginning again. This will have to be determined by the authority on a case by case basis. In the latter scenario, the restriction in section 2A to the Act would apply.

4.6 Denominational schools

149. As a safeguard for the continued provision of denominational education in denominational schools, authorities must submit for Ministerial consent proposals which fall to be considered under section 22C and 22D of the Education (Scotland) Act 1980. The 2010 Act revoked sections 22A and 22B, but left sections 22C and 22D untouched. Specific criteria apply in both sections before a proposal would fall to be considered:-

• Section 22C requires an education authority to submit for Ministers’ consent a proposal which, if implemented, will have the effect that all or some of the pupils who attend the school will no longer receive school education in a denominational school, or that all or some of the children who would, but for the implementation of the proposal, have been likely to receive their education in a denominational school will not receive education in a denominational school. Ministers must not grant consent under section 22C unless satisfied that adequate arrangements have been made for the religious instruction of pupils and children who would, as a result of implementation of the proposal, no longer receive or be likely to receive school education in a denominational school.
• Section 22D requires an education authority to submit for Ministers’ consent a proposal which relates to a change to a denominational school e.g. closure or amalgamation, where the church or denominational body concerned disagree with the proposal. After consultation with the authority and the church or denominational body, if Ministers are satisfied that the proposal if implemented would result in a significant deterioration for pupils in the local authority area (or to pupils belonging to the area of any other authority) in the provision, distribution and availability of school education in denominational schools compared with the provision, distribution and availability of school education in other public schools, consent to the proposal must be withheld.

150. Ministers will consider such a referral separately to their call-in powers under the 2010 Act and, if required, grant or withhold consent to a closure proposal under sections 22C or 22D of the Education (Scotland) Act 1980.