Schools Act 2010

Education Scotland: Schools (Consultation) (Scotland) Act 2010

The Act requires report from HM Inspectors in the case of every proposal requiring consultation. The Act defines ten types of proposal that will trigger the consultation process. Proposals requiring consultation are those where an education authority proposes to:

discontinue permanently a school (this includes special schools and and nursery schools) or a stage of education in a school (this includes years in a secondary school or a special class in a mainstream school or where the authority proposes to discontinue Gaelic medium provision);
establish a new school or stage of education in a school;
relocate a school or nursery class;
vary the catchment area or modify the guidelines for placing requests for a school;
vary the arrangements for the transfer of pupils from a primary school to a secondary school;
change the school commencement date of a primary school;
vary arrangements for the constitution of a special class in a school other than a special school;
discontinue arrangements for the provision of transport by the education authority for pupils attending a denominational school;
change a denominational school into a non-denominational school; and
discontinue a further education centre which is managed by the education authority.

The council and Area Lead Officer will need to work together closely in agreeing the three week period for the completion of the report by HM Inspectors. The three week period commences once the initial consultation period is completed and the council has provided Education Scotland with the relevant papers. Week one of the three week window should be during term time. This enables HM Inspectors to visit schools during week one of the three week period to meet with parents, staff, children, young people and others who are affected by the proposal. The following table sets out a timeline for the various phases(*1) of the consultation process.

(*1) The Act does not specify phases. The term is used in this summary for ease of use and clarity.

Phase One: A council consults on a proposal - lasts a minimum of six weeks, including at least 30 school days

The council has to:

prepare a proposal paper, including an educational benefits statement and other required information (*2);
publish the proposal paper, advertise the fact and notify Education Scotland and mandatory consultees;
give the relevant mandatory consultees notice of the proposal which would include:
a summary of the proposal, where to get a copy of the proposal paper and how to make written representations;
the closing date of the consultation, which will be a minimum of six weeks to include at least 30 school days;
give advance notice of the date, time and venue of the public meeting to relevant consultees and Education Scotland;
investigate and determine what action is required where an inaccuracy or omission in the proposal paper is alleged or discovered;
conclude the consultation, after a minimum of six weeks, including at least 30 school days; and
provide Education Scotland with a copy of the proposal paper, copies of the written representation, or, if HM Inspectors agree, a summary of them, a summary of oral representations made at the public meetings and any other related documentation.

(*2) Before consulting on a proposal to close a rural school a council must give itself sufficient time to identify its reasons for formulating the proposal and consider if there are any reasonable alternatives to closure of the school.

Phase Two: Involvement of HM Inspectors - within three weeks HM Inspectors finalise their report

The three week period commences on the day Education Scotland receives the relevant papers from the council, not from the last day of the initial consultation period. At this stage, HM Inspectors will consider the proposal, including:

the educational benefits statement;
the representations received by the council;
any further written representations made directly to Education Scotland on any educational aspects of the proposal which is considered relevant; and
finalising a report within three weeks and sending it to the council.

Phase Three: Consultation Report - within no specified timescale, the council prepares and publishes a final consultation report

The council publishes its final consultation report. It is important that a council gives itself sufficient time to consider the report from HM Inspectors and other responses to the consultation before preparing and finalising its final consultation report. It must contain:

an explanation of how it has reviewed the proposal;
the report from HM Inspectors in full;
a summary of points raised during the consultation - both written and oral - and the council's response to them, and
the substance of any alleged or discovered inaccuracies and omissions details of the council's response and the action take.

For rural school closure proposals, within the final consultation report the council needs to carry out a further assessment of the proposal and each of the alternatives set out within it. If, during the consultation period, the council receives written representations on other reasonable alternatives, it must, for each of them, assess the likely educational benefits of the proposal and the alternatives, the effect on the local community, and the effect of any different travelling arrangements.

Phase Four: Council Decision - a minimum of three weeks after the publication of the consultation report the council publishes its final decision

The council takes its final decision on the proposal and implements the decision. However, where the council makes a closure decision, it must notify Scottish Ministers within six working days of making the decision, starting with the day on which the decision is made, and send a copy of the proposal paper. The council must also publish on its website the fact that it has notified Scottish Ministers of its decision and of the period during which consultees have the opportunity to make representations to Ministers,

Phase Five: Call-in and determination in the event of a closure decision

Ministers have the power to call in decisions, but only in relation to school closure decisions and where it appears to Ministers that the council has failed in a significant regard to comply with the Act's requirements or, in coming to its decision, has failed to take proper account of a material consideration relevant to the proposal. Ministers have up to eight weeks to decide whether or not to issue a call-in notice. The Act, as amended, gives Ministers and School Closure Review Panels (once established) the right to call on the advice of HM Inspectors in relation to a proposal at the call-in or determination stage.