Commentary on Sections Part 3: Miscellaneous Section 21: Learning hours
118.Section 21 inserts new section 2ZA into the Education (Scotland) Act 1980, and makes amendments of section 133 of that Act.
119.Section 2ZA(1) places a duty on education authorities and managers of grant-aided schools to make available each year to pupils for whose education they are responsible no fewer than the number of learning hours prescribed by Scottish Ministers.
120.Section 2ZA(2) provides that education authorities are responsible for the school education of pupils who belong to their authority area (a concept which is determined by the residence of their parents), and who either attend a school managed by that authority, or are educated by virtue of arrangements made by that authority. Managers of grant-aided schools are responsible for the school education of pupils who attend their schools, other than where the pupil is attending in consequence of arrangements made by that pupil’s education authority; in which case, the authority remains responsible.
121.Section 2ZA(3) allows that education authorities may make available fewer than the prescribed hours to a pupil in the circumstances outlined in section 2ZA(4).
122.Section 2ZA(4) identifies the circumstances in which education authorities may make available fewer than the prescribed hours as being: where the authority is satisfied that making available the prescribed hours to the pupil would adversely affect that pupil’s wellbeing; where matters outwith the control of the authority make it impracticable to make available the prescribed number of hours during the relevant year; and in other circumstances prescribed by Scottish Ministers in regulations.
123.Section 2ZA(5) provides that where an education authority makes available fewer than the prescribed hours, no fewer than the reduced hours must be made available.
124.Section 2ZA(6) defines “reduced hours” as being the prescribed hours less the number of learning hours not made available to the pupil during the relevant year due to the circumstances identified in section 2ZA(4). The prescribed hours can thereby only be reduced in so far as they need to be, directly to address those circumstances.
125.Section 2ZA(7) requires that education authorities assess any potential adverse impact of the prescribed number of hours on a child’s wellbeing with reference to the factors listed; i.e. the extent to which the pupil is or would be safe, healthy, achieving, nurtured, active, respected, responsible and included.
126.Section 2ZA(8) provides that subsections (3) to (7) apply to the managers of grant aided schools as they apply to education authorities.
127.Section 2ZA(9) provides that regulations prescribing the number of learning hours (under 2ZA(1)); prescribing the additional circumstances in which education authorities and managers of grant-aided schools may provide fewer than the prescribed hours (under section 2ZA(4)(c)); or defining “learning hours” (under section 2ZA(12)) may include transitional or transitory provision, and make different provision for different purposes and for different types of pupil.
128.Section 2ZA(10) allows Scottish Ministers to modify, by regulations, the list of factors in subsection (7) to which education authorities and managers of grant-aided schools should have regard when considering whether providing a child with the prescribed number of learning hours would adversely affect their wellbeing.
129.Section 2ZA(11) requires Scottish Ministers to consult before making regulations prescribing the number of learning hours (under 2ZA(1)); prescribing the additional circumstances in which education authorities and managers of grant-aided schools may provide fewer than the prescribed hours (under section 2ZA(4)(c)); modifying the list of factors to which education authorities and managers of grant-aided schools should have regard when considering whether providing a child with the prescribed number of learning hours would adversely affect their wellbeing (under section 2ZA(10); or defining “learning hours” (under section 2ZA(12).
130.Section 2ZA(12) defines “learning hours” as hours of school education of a type prescribed by Scottish Ministers by regulations. “School education” is defined to exclude early learning and childcare. A “school year” is defined as the 12 month period beginning on 1 August.
131.Sections 21(3)(a) and (b) amend section 133 of the 1980 Act (regulations, etc.) to provide that regulations made under new section 2ZA(1) are subject to the affirmative procedure.
132.Sections 21(3)(c) and (d) amend section 133 of the 1980 Act to extend to managers of grant-aided schools, as well as to education authorities, the right to apply to Scottish Ministers for a direction that any regulations made under section 2ZA(1) shall not apply to those managers or that authority, or shall only apply subject to such modification as the Scottish Ministers may specify. The Scottish Ministers may only make such a direction if it appears to them that application of the regulations would be unreasonable.