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section 3: proposals for handling rural school closures

What do we mean by a "legislative presumption"?

23. It needs to be clear from the outset that a legislative presumption against rural school closures is not the same as a prohibition on rural closures. Perhaps a fuller description of the Government's intention is to achieve a situation in which a decision to close a rural school would always be a decision of last resort; one which would not be taken until all possible alternatives have been explored and all the likely adverse implications have been identified and actions planned to minimise their impact. The importance of considering the future of a school alongside and in the context of rural development planning and policies cannot be over-emphasised. The future of a rural school is bound up with the plans and prospects for the communities and area which it serves. We want therefore to ensure that authorities do everything they can to keep a rural school open before deciding to consult on proposed closure. Looking at all the possible alternatives must be a two-stage process. The authority itself should do this before it even reaches a decision to consult on a proposal to close, and it must also consider any further options or suggestions that emerge during a genuine consultation process.

24. Simply stating in legislation "there shall be a presumption against" anything is problematic as it can be widely interpreted, or misinterpreted, leaving a great deal to be clarified by the courts. Rather, we propose establishing a robust process of consideration and decision-making which achieves the same effect. By setting out in legislation matters to which authorities must have prior regard, a presumption is not created that no rural school will ever close but that none will close unless and until those matters have been fully taken into account.

25. Such an approach is already precedented. In England guidance on school closures states that: "In considering statutory proposals to close a rural school, the Decision Maker should have regard to the need to preserve access to a local school for rural communities. There is therefore a presumption against closure of rural schools. This does not mean that a rural school should never close, but the case for closure should be strong and the proposals clearly in the best interests of educational provision in the area". ⁵ In addition recent legislation was passed in England that set out four matters to which local authorities must, in law, have regard when considering proposals for rural primary school closures. ⁶

26. In Wales there is no presumption against rural closures either in legislation or guidance but the latter states that the Welsh Assembly Government is concerned to ensure access to reasonably local schools. Guidance also makes clear that in rural cases particular consideration will be given to the educational challenges faced by small schools, the home to school transport implications and the overall effect of closure on the community. The guidance states "This does not mean that rural schools should always remain open but the case for closure has to be robust and the proposals must be in the best interests of educational provision in the area". ⁷

27. In clarifying what is meant by closure, the Government is of the view that the new process should apply where what is proposed is permanent discontinuance of the provision of education at a school which pupils currently attend. Where an authority chooses for instance to 'mothball' a school whose roll has fallen to zero, that is a matter of management of its estate. If the authority subsequently decides to close the school permanently then the provisions proposed in this consultation paper would apply.

Matters to which authorities must 'have regard' when considering a rural closure

28. We propose introducing a new provision in primary legislation that would require an authority to consider specific matters prior to reaching a decision to propose and consult on a rural school closure.

29. It is important to strike a careful balance when considering which matters might appropriately be referred to explicitly in such a legislative provision - both in terms of the way such matters are defined and in the length of the list. The list need not and should not attempt to be exhaustive. The longer it is the more it will be seen as, or even interpreted in the future as being, an attempt to be exhaustive. It needs to be recognised that there will be many matters which an authority will naturally take into account as a matter of course. It is not necessary for the law to oblige them to do so. For example, wider strategic, operational and financial considerations will bear on an authority's consideration, as of course will future population and school roll projections for the area.

30. It is also important not to be overly specific in framing the matters to which authorities must have regard. Too prescriptive or lengthy a description in the legislation tends to have the unintended consequence of excluding aspects of the matters which are not specifically mentioned, whereas a broad generic description catches all aspects. So we propose setting out in broad and simple terms the matters to which an authority must have prior regard, in other words to which it must have given explicit consideration before it reaches the decision to propose and consult on closure of a rural school. We do not intend to specify how authorities should go about having regard to the matters set out. That is for them to decide. They are ultimately responsible for their decisions and it will be for them to demonstrate to their communities how they have indeed had regard to these matters.

31. Turning then to the substance, the Government proposes that the legislation should specify four matters to which authorities must have regard when considering proposing the closure of a rural school. These are set out below, with reasons.

• Alternatives to the closure of the school

32. The intention is to ensure that the decision to propose and consult on closure is a decision of last resort, taken only after all alternatives to closure have been thoroughly considered - this could include actions to explore community regeneration, improve the school's viability (how education is delivered, the school roll etc) or to maximise use of the premises and facilities by expanding community use or other educational use (e.g. by adult learners, nursery provision etc). A requirement to have regard to alternatives to closure, and to set out the alternatives considered prior to reaching the decision to propose and consult on closure, will oblige authorities to indicate how the closure proposal originated and what other options were considered along the way.

• Likely overall impact of the school's closure on the communities which it serves

33. The read across here to rural development plans and policies is critical - both those of the authority and of other agencies. Authorities would in effect be required to carry out a 'community impact assessment' focusing on the likely impact of the school's closure on the future sustainability and viability of the community in which the school is located and the wider area it serves. For instance closure may lead to families moving out of an area, which in turn could affect the viability of other services within the community (whether or not delivered through the school) and of community groups and activities more widely. Closure of Gaelic-medium provision may have a particular impact in a Gaelic speaking area. Authorities should look holistically at the implications of the proposed closure, balancing potential resource savings (time, effort, services, as well as financial) against additional time, effort, services and funds which could be required to support that community's future and viability, were the school to close.

• The likely impact of closure specifically on the community's subsequent use of the school's buildings, facilities and grounds

34. Authorities would be required to consider the impact of possible options for the disposal and/or future use of the school's buildings, facilities and grounds. In particular the authority would need to examine the extent to which the community uses the school now and whether such use would or could continue after closure. As with each of these 'have regard' matters, there is a significant element of prediction and intent which has to form part of the consideration. The authority, even as owner of the school buildings, does not have total control over their future. For example the Land Reform (Scotland) Act 2003 sets out a 'community right to buy', which could be exercised in the event of a rural school closure.

• The likely impact that new travel to school patterns and arrangements would have on pupils and other school users and on the environment

35. Here the focus is on looking ahead at the likely changed patterns and modes of transport from home to the alternative school, both for pupils and staff, or to alternative premises providing community facilities, for other community users. There could be consequences for pupils' access to out-of-school activities both before and after the 'normal school day'. As well as accessibility and convenience, there may be potential health implications for pupils as a result of the lost opportunity for them to walk or cycle to school. Moreover, it would also be appropriate to consider any impact of changed travel patterns and modes of transport on both the environment (such as carbon emissions and impact) and on the wider local community (such as road safety issues and public transport requirements and patterns).

A rural schools fund

36. There have been various suggestions for the creation of a 'rural schools fund'. ⁸ The Government does not consider it appropriate to support the creation of a fund to which schools or the community could apply directly, in order to subsidise the running costs of, or capital works to, a local authority school. That would cut right across the way in which education is funded and delivered in Scotland, and across authorities' statutory responsibilities to maintain school buildings and to provide school education.

37. Even were a fund to be accessed by authorities directly, the Government would not be disposed to support its establishment. Firstly it would seem to send a signal that the issue of rural schools is principally about funding. We recognise that authorities take all school closures seriously and give them very careful consideration, but it can never simply be a cost-saving exercise; there are always more factors to consider than just the financial one. There is no denying that delivering education (and many other) services in an authority's more rural and remote areas costs more on average than in urban areas - the costs involved in the delivery of services are by no means uniform across an authority's area. Equally, it is a fundamental responsibility of any authority to take account of this and deploy its resources in a way that delivers services appropriately across a diverse area.

38. Secondly the creation of a new 'specific grant' would also go against the principles of the new funding agreement and arrangements which have been agreed between the Government and COSLA in the Concordat and the associated local government settlement. The Government, respecting authorities' rights to decide how best to meet communities' needs by deploying resources, is removing many of the constraints and inflexibilities of current funding arrangements and looking to authorities to manage their budgets and their delivery and funding of services around a small number of high level strategic outcomes and indicators. Authorities in future will therefore have greater autonomy and accountability for directing resources to meet particular needs in their areas. Lastly, there would also be a risk that the existence of such a fund could create an unintended and perverse incentive to propose rural schools for closure, just in order to access the fund.

Definition of "rural schools"

39. The proposals set out in this section of the paper would apply solely in cases of proposed closure of rural schools. There is a need therefore to define "rural schools". Two approaches to the question of definition have been considered. The first would be to construct a list of schools based on some school-specific 'rural' features or criteria. That though could result in much argument both over the criteria and over their interpretation in each local case, in other words whether a particular school should or should not appear on the list.

40. The second approach would be to define rural areas in a more generic way, so that any schools within those areas would automatically be designated rural for the purposes of these proposals. The clearer and more transparent and indeed 'independent' a definition of rural areas that can be devised or used, the more we think the results would be likely to command respect and provoke least argument around the detail. There is a set of definitions of the various rural and non-rural areas of Scotland which is easily understood and well established, in the form of the Government's own Urban/Rural Classification, which would serve the purpose well. It was created to develop understanding of the issues facing urban, rural and remote Scotland, and is now used for a variety of purposes, particularly when presenting statistics and information, and is set out below.

Scottish Government Urban/Rural Classification

41. We therefore propose that "rural schools" should be defined as those located within the areas covered by the three "rural" categories in the classification above. This would mean that schools in settlements of under 3,000 people would be classified as "rural schools". It is a straightforward and easy to understand system and as it is updated every couple of years it is also dynamic and responsive to changes in population. In numerical terms there would be approximately 1,000 "rural schools" of which around 900 would be primary, 90 secondary and 10 special. This would mean 41% of primary schools, and 23% of all secondary schools, would be "rural schools". The map at annex e shows the three categories of rural area that would be included in the classification.

42. Population growth in rural areas could lead in the future to a very small number of schools changing from "rural" to "non-rural", but an expanding population is much more likely to require additional school places rather than fewer. If a decreasing population resulted in a settlement falling into one of the classification's rural areas, and an authority proposed the closure of a local school, the additional provisions relating to "rural schools" would then apply. We propose that the Scottish Government should generate a list using these categories, which would be held administratively, available for reference and updated by the Government as required.

Consultation Questions

Q1. Do you support the proposal to require local authorities to have regard to certain matters before they can proceed to consultation on the closure of a rural school?

Q2. Do you agree with the four matters we propose requiring that authorities should have regard to before proposing a rural school closure? These are:

• alternatives to the closure of the school
• likely overall impact of the school's closure on the communities which it serves
• likely impact of closure specifically on the community's subsequent use of the school's building facilities and grounds
• likely impact that new travel to school patterns and arrangements would have on pupils and other school users and the environment.

Q3. Do you agree that it is not appropriate to set up a rural schools fund?

Q4. Do you agree with the proposed definition of "rural schools"?

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