Additional Guidance On Local Authority Proposals For The School Estate, Including School Closures
Purpose
1. The primary purpose of this guidance is to set out the roles and responsibilities of those involved in the process of considering proposals that may lead to changes in the school estate, including closures of schools. It is intended to act as a framework, guide and clear reference point. It does not usurp the statutory rights and responsibilities of others, or supersede earlier detailed guidance on procedures. Reference is also made to publications in the series - Scotland's School Estate (see list of weblinks at the end). This guidance should therefore be read in conjunction with relevant legislation, earlier guidance and other materials, and the covering letter of 11 October 2007 to Education Conveners from Fiona Hyslop, Cabinet Secretary for Education and Lifelong Learning.
Introduction
2. Councils have stewardship of education services at the local level. That carries with it many responsibilities, including responding to the changing landscape against which education must be provided. Among other statutory duties, authorities have to make adequate and efficient provision of school education for their area. That requires them often to look at issues from a somewhat different perspective from that of parents and local communities. An authority's responsibilities cover the whole of its area, whereas the focus of parents or the local community is, quite understandably, on their local school at a particular point in time. An authority's responsibilities also continue into the future, and that requires taking a long view, over generations, in other words looking far beyond just the current school population and pattern of demand.
3. An authority must keep its school provision under review. Buildings age and become unsatisfactory. Populations move and settlement patterns change. How education is delivered also evolves, which places different requirements on building, their spaces and facilities. Where once there may have been a young population in a particular community the age profile may have changed over time. In other areas, an authority may have to provide new school buildings in response to new housing developments and a growing and more youthful population. Thought must be given to questions such as what is the right 'shape' for a school? what facilities does a modern school need? to what extent must school buildings be increasingly flexible and adaptable to cope better with changing needs in the future? All those circumstances require authorities to continue to adjust the school estate and pattern of supply of education to match an ever changing pattern of demand.
The School Estate Strategy
4. In early 2003, the Scottish Executive and COSLA published a joint strategy for the school estate - Building Our Future: Scotland's School Estate. The purpose of the Strategy is to promote and ensure the creation of a learning and teaching environment fit for the future and buildings that will deliver better public services both to pupils and the wider community. It provides a national and coherent context for all the detailed strategic work at authority level.
5. The Strategy sets out a vision that every school should be an excellent school, raising aspirations, inspiring learners and teachers, enabling and supporting education, and making a positive contribution to local communities. It puts in place a framework within which to consider and plan the future investment in and improvement of the whole school estate, over the long term, to an extent which has never been done before.
6. The Strategy itself was only the start of a process; the bulk of the work still lies ahead. Progress and success will depend on working together in partnership. The process of making plans and taking decisions needs to involve the widest possible consultation and discussion with pupils, parents, teachers and local communities.
7. The Strategy recognises the importance of good school buildings in meeting a range of local and national policy objectives. Subsequent guidance has been produced which focuses on the creation of schools well suited to the needs of users, in School Design; and The 21st Century School highlights a range of Scottish Executive policies that impact on the delivery of better public services through the school estate.
8. The Executive's and authorities' joint objectives for the 21st Century School are:
• To deliver better services through the school environment that focus on:
- the child at the centre - meeting the needs of individual children
- the school at the heart of the community - meeting the needs of communities: and
• To deliver these services, in respect of the school estate, through the right:
- condition - a safe, secure environment
- sufficiency - schools that match demand
- suitability - supporting the delivery of better public services including the provision
of the right facilities
- life cycle management - taking the long term view
- design - turning our objectives into reality.
9. The current huge expansion in investment in the school estate - Scotland's biggest ever school building programme - must mean not just more investment but smarter investment. This requires careful forethought and planning. There is no single blueprint for the future; the right solution locally must reflect the particular needs, aspirations and wishes of today's pupils, staff, parents and communities. Authorities must balance all of these with their own responsibilities to ensure that there will be proper provision for the pupils and communities of the future.
School Estate Management Plans
10. The framework for implementation of the School Estate Strategy sets out the roles and responsibilities of stakeholders; implementation techniques and mechanisms such as the development of School Estate Management Plans; the resources required; the timeframe; and the ways in which forward progress and success will be measured.
11. A central feature of the framework is the development by each education authority of its School Estate Management Plan. These are intended to help authorities identify and draw together needs, priorities and funding streams, consider a wide range of complex issues bearing on the school estate and take a long term view of the future. The resultant plans are strategic, management tools, formulated and produced in an inclusive manner, reflecting an appropriate level of consultation with stakeholders and integrated with authorities' other asset management and community plans. Guidance on preparation of School Estate Management Plans is available as part of the series of School Estate Strategy publications.
12. The process of school estate management planning should follow a logical sequence:
• Step 1 - define authority-wide objectives: to reflect the strategy and local circumstances. These should be strategic, taking account of the wider picture, the long term, and sustainability.
• Step 2 - assess current position: audit the existing school estate - taking account of condition, sufficiency, suitability, life cycle management and design - and the extent to which it meets current and future objectives.
• Step 3 - consider options: identify and assess the range of options to meet the objectives. Each option then needs to be appraised, considering the costs and benefits (in all senses, not just the financial) of each option over the short and long term, taking account of available resources, and identifying the option that offers the best overall outcomes.
• Step 4 - develop the plan: it needs to be both detailed and long term, although the level of detail will inevitably be greater for earlier years.
• Step 5 - implementation: phasing to address and balance maintenance, refurbishment and replacement requirements.
• Step 6 - monitor, review, evaluate: against the plan's objectives. The plan should be reviewed, maintained and regularly updated so that it continues to contain and provide good quality management information.
13. The Scottish Executive has also issued guidance on the Option Appraisal process. This is a technique for setting objectives, creating and reviewing options and analysing their relative merits. An effective option appraisal should help ensure that all relevant factors have been taken into account in deciding whether a proposed project should proceed and, if so, how best to carry it out. It should be a process that involves consultation prior to final decisions being taken, and that leaves a clear audit trail.
The Legislation
14. The roles and responsibilities of education authorities and Scottish Ministers are set out in legislation. The legislation that is directly relevant to proposals to change the status of schools, for example changing the site or altering the catchment area of any school, providing a new school or discontinuing/closing a school is the Education (Scotland) Act 1980 (the "1980 Act") as amended, including by the Education (Scotland) Act 1981; and the Education (Publication and Consultation Etc) (Scotland) Regulations 1981 plus the various Amendment Regulations made in 1987, 1988, and 1989.
15. Circulars issued to local authorities (1074 in November 1981 and 1174 in December 1988) provide detailed guidance on the legislation referred to above and also set out authorities' general duties, and specific issues relating to denominational schools, distances to alternative schools and school capacity. This new guidance builds on and adds to what is contained in the earlier circulars. It does not supersede them.
The Education Authority's Role and Statutory Responsibilities
16. The task facing an education authority is a complex and challenging one. It must meet and fulfil a wide range of statutory duties and responsibilities and in so doing it must always be answerable and accountable to its electorate for its policies and decisions, as a normal part of the democratic process. What is set out below covers the principal statutory duties and responsibilities placed by Parliament on education authorities in relation to the local provision by them of school education.
17. In summary, under section 1 of the 1980 Act authorities have an overarching statutory duty to provide adequate and efficient provision of education for their area. That of course includes the provision of school buildings. Section 2 of the Standards in Scotland's Schools etc Act 2000 sets out a duty relating to the direction of the education provided, and section 3(2) sets out authorities' responsibilities to endeavour to secure improvement in the quality of education in their schools. The Local Government in Scotland Act 2003 specifies authorities' duties to secure best value ie continuous improvement in the performance of their functions as well as their responsibilities relating to community planning
18. Other parts of the 1980 Act are relevant to school estate proposals, in particular sections 22 and 22A-D, which deal with discontinuance, closure, merging or moving of schools, consultation on certain educational matters, the consent requirement for certain changes, and matters specifically concerning denominational schools. Most of these sections require to be read with the relevant 1981 and amendment regulations. Under section 28 of the 1980 Act authorities, in exercising their powers and duties, are required to have regard to the wishes of parents so far as is compatible with the provision of suitable education and the avoidance of unreasonable public expenditure.
19. Where an authority proposes to change existing school provision in any of various ways, including closing, merging or changing the site or catchment area of a school, it is required by the Education (Publication and Consultation Etc) (Scotland) Regulations 1981 to publicise its proposal, consult parents and School Boards affected, and allow them and other interested parties a minimum 28 day period to make their views known to the authority. The regulations set out full details of the categories of people to be consulted over the various types of proposal and the form that the publication of proposals and consultations should take. For example, notification of a proposal should indicate where representations should be sent and/or the details of a public meeting at which authority representatives will be present. There are specific provisions where proposals affect denominational and single sex schools. The regulations themselves must be referred to for full details. The authority must then have regard to comments received, in reaching its decision. Once its decision is made, the regulations do not in any way prescribe the time period before it can be implemented.
Scottish Ministers' Role and Statutory Responsibilities
20. In all cases the final decision rests with the education authority as to how to fulfil its statutory duties, including such decisions as whether to close, merge or change the site of a school. It is not the role of Ministers to second guess decisions taken by an authority or to act as some sort of 'appeal court' for those who disagree with a Council's decision. Ministers could never be in possession of all the local facts and 'intelligence' that informs a Council decision, such as would enable them somehow to 're run' or 're take' the Council's decision. Despite widespread assumptions to the contrary, Ministers have no locus to, and cannot interfere or intervene in Council proposals for and decisions on school changes or closures beyond their defined role in cases where the Council decision must be referred for Ministerial consent.
21. Parliament has tightly restricted the circumstances in which Ministers become involved in these processes, by prescribing in statute the circumstances in which an authority cannot implement its decision without obtaining the consent of Scottish Ministers. For instance in cases of proposed closure there is a requirement for referral to Ministers where:
• the school's roll exceeds 80% of the its capacity, or
• primary pupils would have to attend an alternative school 5 or more miles distant from their present one (or 10 or more miles in the case of secondary pupils), or
• in certain circumstances where there is a proposed change to the provision of denominational education in an area.
22. In seeking the consent of Ministers, it is the responsibility of authorities to ensure that any and all material facts and reasoning are submitted for Ministers' consideration, at very least including:
• all details of the consultation proposals, responses and outcome
• how the principles set out at paragraph 26 apply
• relevant factors such as those illustrated in paragraph 27
• whether the proposal has evolved during the consultation and decision-making process, and
• how the proposal and decision relate to the legislative framework as set out in the 1980, 2002 and 2003 Acts referred to in paragraphs 17 to 19.
23. Ministers' role in cases referred to them will principally be to act as a check that authorities have complied with all the statutory requirements and processes and have demonstrated that in all the circumstances they have taken a reasonable decision. They may call for further information and/or ask HMIE for advice on the proposal and will pay particular attention to the way in which the authority has presented its case and addressed and dealt with the various aspects of this guidance.
24. There is no set timescale for Ministers' consideration of applications for consent. Depending on the complexity of the case, it may take a matter of weeks or months.
Formulation and Consideration of Proposals for Change
25. The 21st century school is a place that must support the diverse needs of pupils and local communities. In planning to fulfil their statutory duties and deliver this in practice, authorities have to formulate and agree on, and then set out their long term forward strategy. This must be the context within which more detailed or specific proposals will be formulated. Authorities will need to weigh up a large number of factors in order to reach decisions that balance interests and achieve the best outcomes. The process of doing this has been called many things - cost benefit analysis (using the two terms in the wide, rather than just the financial sense), value for money, test of proportionate advantage, option appraisal etc. Irrespective of what it is called, it must be a rigorous and several stage process which broadly follows a sequence set out in the Executive's recent Optional Appraisal guidance:
- develop and assess options, weighing, balancing and analysing
- decide on proposal(s) for consultation
- engage in open and genuine consultation
- reach, explain and implement final decision
26. There are a number of guiding, underlying principles which the Executive considers should bear on authorities' formulation and consideration of proposals for changes to schools. These include:
• The vision set out in the joint Scottish Executive-COSLA School Estate Strategy, for
- well designed, well built and well managed schools that
o support national and local priorities and
o inspire children, young people and communities; and for
- a future school estate that
o meets our aspirations
o responds to evolving needs and
o is effectively managed and maintained over the long term.
• The broad objectives for the 21st Century School, as set out in paragraph 8.
• The need to apply a consistency of approach and process to the way in which proposals are formulated, considered, consulted and decided on.
• The need to identify, balance and weigh all the relevant factors in each case and be able to demonstrate and explain, openly and transparently, the decision making process and its 'audit trail'.
• A recognition that the final decision in each case will emerge from a process which takes into account a unique blend of current and local, as well as wider and longer term factors.
Identifying and Considering all the Relevant Factors
27. This is a matter for authorities' judgement and discretion, but always having regard to the importance of the views, focus and sensitivities of parents. The 'mix' and 'weight' of factors to be taken into account will differ in each case. There follows an illustrative but not exhaustive list of potential factors, highlighting some of the principal considerations which are likely to be in authorities' minds during the decision making and consultation processes. They are not presented in any ranked way except that the 'educational case' will always be key. If the judgement or decision is finely balanced, the quality of education provided to pupils, locally and more widely, now and in the future, will normally be the overarching consideration.
• (a) The Educational 'case' - the educational advantages for pupils directly affected, and for others further afield (so long as those advantages can be secured without disadvantaging the pupils directly affected). There will be many aspects to be considered here in the context of addressing the current disadvantages of present arrangements and the nature and scale of improvements which the proposals are intended to deliver - in and around the quality of the learning and teaching environment, opportunities for pupils' optimal learning and social interaction, how best to deliver a modern, flexible curriculum with appropriate opportunities for choice and flexibility, access to facilities, both general and specialist and many other aspects of 'school education'.
• (b) Travel distances and times - this must be a major consideration in proposing any changes to the pattern of school provision ie the implications of the new pattern of home to school distances and travel times, the effect of lengthening the school day for some, issues of safety, the provision and availability of transport, impact on access to extra-curricular activities, and always taking account of the age of the pupils affected.
• (c) Future pupil and population projections - authorities must be mindful of the need to fulfil their statutory duties into the future, as well as now. They must plan ahead on the basis of the best available population, pupil and school roll projections, deciding how and when best to make changes to the pattern of school provision and planning investment in the estate which will improve the quality of and underpin the delivery of school education over the lifetime of the schools in question ie for decades to come.
• (d) Community Planning and Use - integrating the consideration of proposals for change with the wider community planning process is important; how the proposals square with authorities' own community planning responsibilities and reflect other community interests, and also with the overall objective of better delivery of public services. The concept of the integrated community school is central here - how a school building is integral to, and serves the needs of, its local community in ways beyond just the provision of school education to pupils; the 'place' of the school in a community and the key role, in the widest sense, that it often fulfils.
• (e) Rural Sustainability and Development - much has been said about the role of the local school in a rural community. There will always be a need for rural schools - Scotland's geography dictates that - and there are plenty of examples of vibrant, small rural schools serving very local, or wider areas. It is the pattern of rural schooling that is the issue. Authorities need to manage change in the provision of rural schooling alongside and in a way that synchronises with other policies relating to rural development and sustaining the viability of rural communities. This will always require fine judgement on the authority's part, recognising and responding to trends but avoiding precipitating them.
• (f) Urban Communities and Regeneration - schools are every bit as important an element to the community landscape in urban areas, in terms of their contribution to the viability and sustainability of communities, and alongside the range of other policies designed to promote economic development and regeneration in the urban setting. Proposed changes to the pattern of schooling in towns and cities provoke no less debate and strength of feeling than in rural areas.
• (g) Financial Considerations - authorities have a statutory duty to provide 'efficient' as well as adequate school education for their area and to secure best value in the performance of their functions. The financial advantages and disadvantages of proposals, as compared with the status quo, are of major relevance as authorities strive to derive maximum benefit from the deployment of finite resources. All aspects of the financial picture need to be factored in eg the costs of the proposals and the expected returns, considerations of cost-effectiveness over the long term, savings in future revenue and maintenance expenditure which may accrue from capital expenditure now, additional cost elements such as transport etc.
• (h) Other Alternatives, 'Lateral Thinking' - in terms of buildings, can they be used differently and more imaginatively, is there the possibility of shared use ie for other purposes for which there is a local demand? Conversely, if the state of the building is a problem are there other available, underused local buildings which might be brought into the equation? Have changes to management systems and arrangements been considered such as networks of smaller schools sharing management, teaching and other resources and facilities? Has full account been taken of developments in educational and other technologies and their implications for the delivery of education?
• (i) The 'unique' local factors - in the case of every proposal relating to a specific school there will be factors and issues unique to that case.
School Closures
28. Of all the changes to the status of a school that may be proposed, the most controversial is likely to be closure. The popular school closure is a very rare thing.
29. There are various reasons which may prompt an authority to consider the future of a school, including its possible closure. The following few are only illustrative of some. The school roll - either in a single or a group of schools - may have fallen below what is optimal in terms of educational opportunity, choice and flexibility, and the social interaction of pupils; there may be significant under occupancy of the buildings; the condition and suitability of buildings and facilities may be below acceptable standards and/or beyond economic repair; there may be new opportunities, for various reasons, to provide better buildings and facilities, and improve the quality of educational provision, nearby. Sudden, even unexpected changes in these factors or the circumstances of a school may prompt an authority into consideration of its medium or long term future. Rationalisation of the pattern of school provision, involving mergers or closures, may also be contemplated where there would be a significant release of resources, capital or revenue, as would benefit both the local and the wider community in achieving better educational outcomes from future spend and/or where authorities see opportunity for improving the quality of education for all pupils or for securing best value, in terms of the statutory duties set out in paragraph 17.
29. The process by which an authority arrives at a decision to propose and consult on a closure should be as rigorous as for any other category of decision, and should not fundamentally differ in approach. Authorities should proceed to consider all aspects of the relevant factors. Every situation, and the range of possible options and solutions, will be different and will require to be considered on its merits. If an educational advantage will occur to the wider community that clearly should not be secured at the cost of educationally disadvantaging pupils directly affected by the closure. In other words there must be advantages both locally and on the wider scale.
A Consultative Process
30. Consultation is key to this whole process. If the process commands respect then, for the great majority of people, so will the outcome. Experience and 'good practice' both dictate that there should be a real emphasis here on both the quality and quantity of consultation. The emphasis should be on more consultation, more information, more time, rather than less; a fuller process rather than the minimum required to comply with the legislation.
31. When authorities generate debate about potential changes to schools, including closure, they know that there will be an impact on the feelings of people in the community - on their sense of place and community - as well as an impact on individual children, on which parents will rightly focus. It is a debate in which there are no 'absolutes'. Invariably there is a balance of arguments to be weighed against each other. It is important that all those consulted on closure proposals feel that they have been listened to and have had the opportunity properly to understand and assess the balance of arguments for and against.
32. Authorities must be confident of the grounds for their proposals, and well prepared to articulate and explain them. They should set out the case for change, the advantages and disadvantages, the costs and savings, fully, clearly and openly. Paragraph 19 describes the main statutory requirements for the formal consultation process. There should be great clarity about precisely what it is that the Council is seeking to achieve, and why, about the range of options, and why one in particular has been chosen, about the short term effects and the longer term considerations, and about how the authority plans to maximise the benefits and minimise any disbenefits. If there is clarity, the public can understand and judge the proposals. They may not agree with them, but Councils often have to work towards longer-terms horizons and take a wider view and people need to have that perspective clearly set out before them, and to understand what Councils intend. The more open and transparent the process of debate and consultation, the better for all concerned. For it is the responsibility of a democratically elected Council to listen to communities and to account for its decisions to its local electorate.
Taking the Final Decision
33. Experience demonstrates that consultations are indeed heeded. Initial proposals are often changed during the course of the process. That is as it should be. Council decisions are influenced by representations made and by the public debate engaged in. Original proposals may be shelved or deferred, or if they do proceed, the plans for the alternative provision may be changed in some way. New options may be agreed and/or become the subject of further consultation. Implementation plans and timescales may be adjusted.
34. Justice and fair play has to be done and be seen to be done. The gains that will be derived from a proposal, especially a closure, must stand scrutiny and outweigh any negative effects. There is no equation, or formula, or 'balance sheet' which can deliver the "right decision" at the end of the day. The emphasis must always be on a rigorous testing of the proposals for change consulted upon, weighing up a range of factors on the way and taking into account the local situation and the representations that have been received before decisions are arrived at.
35. The final decision may be one which is unpalatable in a particular community or quarter - it will rarely please everybody. But the Council has to reach a decision which takes account of and balances all the complex and sometimes conflicting factors relating to the particular case, in the context of fulfilling all its statutory duties and other responsibilities.
Information for Parents
36. This guidance is principally for education authorities, but it will also be of close interest to parents and others who have an interest in the future of the school estate. The guidance in full, including the covering Ministerial letter to Education Conveners, is available on the 'Parentzone' website.
Further Information and Copies etc
37. Electronic copies of this guidance are available on the School Estate and 'Parentzone' websites at:
www.scotland.gov.uk/schoolestate &
http://www.parentzonescotland.gov.uk/
There are also direct links via the School Estate website to the publications in the School Estate Strategy series which are referred to in this guidance:
The School Estate Strategy
School Design
The 21st Century School
School Estate Management Plans
Option Appraisal
Note
Summary reference is made in this guidance to relevant primary and secondary legislation, although it cannot be taken as an authoritative interpretation of any statutory provisions. Interested parties need to refer to the legislation and regulations directly, for full details.
Originally issued by the
Scottish Executive Education Department
September 2004.
Reissued by the
Scottish Government Schools Directorate
October 2007.