Guidance - Chapter 2: Pupils experiencing inequalities of outcome
Guidance made under section 13 of the Standards in Scotland's Schools etc. Act 2000
Summary of new education authority duties
To have due regard to the need to carry out school education functions in a way designed to reduce inequalities of outcome for those pupils experiencing them as a result of socio-economic disadvantage (see section 3B of the 2000 Act).
- Education authorities, in carrying out their school education functions, must have due regard to the need to reduce inequalities of educational outcome experienced by pupils as a result of socio-economic disadvantage, where:
- an education authority is making a decision of a strategic nature about the carrying out of its functions relating to school education;
- an education authority is considering what steps to take to implement such a decision. 
- The duty applies to: all pupils in receipt of early learning and childcare provided under section 47 of the Children and Young People (Scotland) Act 2014, and all pupils in receipt of primary or secondary education provided by an education authority, including those placed in an independent or grant aided school by an education authority, and covering education delivered in partnership with colleges, employers and Community Learning Development Partners.
- Education authorities must seek and have regard to the views of the persons set out at paragraph 2.11 of this statutory guidance document, in fulfilling their " due regard" duty.
- The processes education authorities put in place to fulfil their "due regard" duty must support authorities in understanding the impact that their strategic decisions have (or are likely to have) on educational outcomes for those children and young people impacted by socio-economic disadvantage.
- The education authority is expected to consider a range of available evidence which is relevant. Evidence should include data on the effectiveness of past improvement activity undertaken within the authority and must take account of learning from individual school improvement planning processes as well as relevant evidence developed in other areas.
2. Introduction and context
2.1. The central purpose of the Scottish Government is to create a more successful country with opportunities for all of Scotland to flourish, through increasing sustainable economic growth. 16 National Outcomes contribute to the achieving of the central purpose by setting out what the Scottish Government wants to achieve and providing a clear structure for delivery. Four of these National Outcomes are key to improving outcomes for children and young people:
- Our children have the best start in life and are ready to succeed;
- Our young people are successful learners, confident individuals, effective contributors and responsible citizens;
- We are better educated, more skilled and more successful, renowned for our research and innovation, and;
- We have tackled the significant inequalities in Scottish society.
2.2. The Scottish Government is determined to deliver a successful education system which meets the needs of our children and young people. It should focus on achieving excellence and equity within Scotland's education system by closing the attainment gap and creating continuous improvement. The 2017 National Improvement Framework and Improvement Plan  was published on 13 December 2016 and set out the steps the Scottish Government will take to drive improvement in Scottish Education, in particular to deliver excellence and equity and to close the attainment gap between our least and most disadvantaged children and young people.
2.3. The most important factor is the belief that every child and young person matters, can achieve equity of outcome, can access quality of learning, and can achieve as highly as possible, according to their individual abilities and strengths. In striving for equity, the attitudinal factors to be addressed include: lack of engagement, lower expectations and confidence and a resulting lack of ambition. By supporting children and young people to become confident, responsible and effective learners, educational outcomes can be improved and children and young people will be prepared with the knowledge, skills and attributes required to succeed in life. This represents a significant contribution to the economic growth of the country, improving wellbeing, family life, lifestyles, communities and the nation as a whole as well as increased opportunities for all.
2.4. Evidence shows that there is a significant gap in educational attainment between children and young people living in the most and least socially disadvantaged areas of Scotland. That can be as a result of many different contributing factors, including, most significantly, levels of family income or poverty. Whatever the reason(s), this is clearly not acceptable. The earlier that gaps in attainment can be identified and tackled, the better chance there is of securing positive outcomes, whether those be educational, health and wellbeing related or financial and so on. It is, therefore, important that any attainment gap is addressed for children and young people from the earliest opportunity.
2.5. There has been a longstanding legal requirement on Scottish Ministers and education authorities to raise attainment for all. Section 3 of the 2000 Act provides that:
(1) The Scottish Ministers shall endeavour to secure improvement in the quality of school education which is provided for Scotland; and they shall exercise their powers in relation to such provision with a view to raising standards of education.
2) An education authority shall endeavour to secure improvement in the quality of school education which is provided in the schools managed by them; and they shall exercise their functions in relation to such provision with a view to raising standards of education.
This section has no associated Explanatory Notes
2.6. However, less emphasis has been placed on the need to address, through legislation, the educational challenges that pupils experience which are specifically associated with socio-economic disadvantage. The 2016 Act amends the 2000 Act so as to require that an increased level of priority and focus be attached to addressing this issue at both national and local level, both by the Scottish Ministers and education authorities.
Duties the education authority must fulfil
Section 3B: Pupils experiencing inequalities of outcome - education authority's duty to have "due regard"
2.7. Section 3B of the 2000 Act (as inserted by section 1 of the 2016 Act) places a duty on education authorities, in carrying out their school education functions, to have due regard to the need to reduce inequalities of educational outcome experienced by pupils as a result of socio-economic disadvantage (referred to hereafter as the "due regard" duty). Subsection (1)(a) requires that education authorities satisfy this duty where:
- "an education authority is making a decision of a strategic nature about the carrying out of its functions relating to school education; or
- an education authority is considering what steps to take to implement such a decision."
2.8. In effect, the primary duty in section 3B of the 2000 Act, requires that education authorities continually consider whether they can do more to help those pupils impacted by socio-economic disadvantage to achieve equality of outcome and to give due weight to the outcome of those considerations when delivering school education.
2.9. Section 3A(2)(b)(ii) of the 2000 Act allows the Scottish Ministers to extend, through regulations, the scope of the duty placed on education authorities so as to capture other groups of children experiencing inequalities of educational outcome in addition to those who experience such inequalities as a result of socio-economic disadvantage. There are no plans to use this regulation making power at present.
Section 3B: Pupils experiencing inequalities of outcome - education authority's duty to consult and have regard to views
2.10. Education authorities are expected to consider the range of relevant available evidence in order to inform the decisions and steps they take with a view to reducing inequalities of outcome. Partners can prove a valuable source of such evidence and it is important that they are given the opportunity to inform and influence an authority's approach.
2.11. Accordingly, section 3B(3) of the 2000 Act (as inserted by section 1 of the 2016 Act) requires that, in fulfilling their "due regard" duty, the education authority must seek and have regard to the views of the following persons as listed in section 3B(4) (and must also provide any advice and support the authority thinks appropriate to those persons in relation to the authority's strategic decisions and steps to take to implement such decisions):
- a) The Headteachers of such schools managed by the authority as the authority thinks appropriate;
- b) Such pupils as the authority thinks appropriate;
- c) The parents of such pupils as the authority thinks appropriate;
- d) The representatives of any trade union which appears to the authority to be representative of the teaching staff at such schools managed by the authority as the authority thinks appropriate;
- e) Such voluntary organisations as the authority thinks appropriate, and;
- f) Any other persons the authority thinks appropriate.
2.12. Other appropriate persons could include, for example, partners involved in delivering programmes, such as colleges; any Developing Young Workforce Regional Group associated with the authority, and; Parent Councils and the wider parent forum within schools.
2.13. Section 3B(3) provides that the key partners listed in subsection (4) must be involved in the decision making process. However, the education authority does have discretion to consult other stakeholders in addition to those listed.
Definitions of "school education", "decisions of a strategic nature", "due regard", "inequalities of outcome" and "socio-economic disadvantage".
Defining "school education"
2.14. Section 3B focuses on the delivery of an education authority's functions relating to school education. The definition of "school education" for the purposes of the 2000 Act is the same as the definition in the Education (Scotland) Act 1980 (section 1(5)(a)):
"progressive education appropriate to the requirements of pupils, regard being had to age, ability and aptitude of such pupils, and includes:
- (i) early learning and childcare
- (ii) the teaching of Gaelic in Gaelic-speaking areas"
2.15. Early Learning and Childcare is defined in the 1980 Act with reference to the definition at section 46 of the Children and Young People (Scotland) Act 2014, which provides:
"early learning and childcare" means a service, consisting of education and care, of a kind which is suitable in the ordinary case for children who are under school age, regard being had to the importance of interactions and other experiences which support learning and development in a caring and nurturing setting."
2.16. Consequently, the duty introduced at section 3B of the 2000 Act, through the 2016 Act, applies in respect of:
- all pupils in receipt of early learning and childcare provided under section 47 of the Children and Young People (Scotland) Act 2014;
- All pupils in receipt of primary or secondary education provided by an education authority, including those placed in an independent or grant aided school by an education authority, and covering education delivered in partnership with the local authority with colleges, employers and Community Learning Development Partners.
Defining "decisions of a strategic nature"
2.17. The duty introduced by section 3B focuses on the considerations which must be made when education authorities are taking decisions of a strategic nature about the carrying on of their school education functions and when deciding how best to implement those decisions.
2.18. Education authorities take a wide range of decisions relating to individual learners and other day-to-day operational matters within the schools they operate, including the support required to overcome barriers to their learning  . It is not the intention that these decisions be covered by the duty included in section 3B. Instead, the duty is intended to focus on those key, high level decisions which influence the way in which education is provided across an education authority area. It is the responsibility of the education authority to frame local policies within strategic decision making processes. It is, therefore, recognised that these decisions could ultimately impact on the operational matters within individual schools and classrooms.
2.19. Examples of strategic decisions could include:
- The setting of education budgets, including staff planning and management arrangements where the size or geographical nature of the authority results in these aspects becoming strategic decisions;
- The establishment of arrangements for monitoring the standards and quality of school education in a given area;
- Decisions about the size and construct of the school estate;
- Decisions about the commissioning of services, including any that may be provided by another authority;
- Decisions about specialist provision, including measures to implement accessibility strategies and inclusion, across the education authority area;
- The identification of targeted and sustained improvement activity designed to raise standards and address known challenges across an education authority area, such as those priorities set out in the National Improvement Framework and Improvement Plan;
- The content of any guidance issued by an education authority to schools in their area on, for example, school excursions, activities and clubs, school dress codes, charging/non-charging for course materials and music or other tuition;
- Decisions taken at authority level which impact on the ability of children and young people to access and participate in education, including strategies for providing support and challenge to partnership providers;
- Partnership arrangements to promote equity and collaborative working, and;
- Alignment and rationalisation of strategic decision making with other local authority planning mechanisms, where relevant, such as Local Outcomes Improvement Planning, Community Planning, Integrated Children's Services Planning.
2.20. In order to fulfil the "due regard" duty at section 3B of the 2000 Act, education authorities will have to identify those decisions of a strategic nature they take and, further, to consider how those strategic decisions can be taken and given effect to in a way which addresses, or helps to address, the disparity in educational outcomes which exists between our most and least disadvantaged learners whilst at the same time raising attainment for all.
Defining "due regard"
2.21. Commonly, legislation places a duty on somebody (an individual or a body corporate) to "have regard" to certain considerations when making a decision. In order for somebody to "have due regard", not only must they consider the issue but it must be given weight which is proportionate to its relevance. In the context of the duty included at section 3B, education authorities have a legal responsibility to consider how they can reduce inequalities of educational outcome caused by socio-economic disadvantage. Further, they will have to attach a degree of weight to this matter and balance it against countervailing factors appropriately.
2.22. The duty is designed to strike a balance. It recognises the need for education authorities to operate within their financial thresholds and to adopt policies which are coherent and complementary. The "due regard" duty at section 3B of the 2000 Act does not take precedence over these matters but operates within that context. It requires that education authorities explore how they might reduce inequalities in educational outcome for those who experience such inequalities due to socio-economic disadvantage, alongside their responsibilities to provide appropriate challenge, support and opportunities for all learners.
2.23. To further contextualise this, in terms of the balancing of priorities within and outwith education, education authorities retain the following duties:
- to ensure there is adequate and efficient provision of school education and further education, as provided for in section 1 of the Education (Scotland) Act 1980;
- to secure improvement in the quality of school education which is provided in the schools managed by them; and they shall exercise their functions in relation to such provision with a view to raising standards of education, as provided for in section 3(2) of the 2000 Act, and;
- to make arrangements which secure best value, as provided for in section 1 of the Local Government in Scotland Act 2003.
Defining "inequalities of outcome"
2.24. It is fully recognised that children and young people's attainment and achievement will differ and it is important that our approach is flexible enough to ensure that every child is supported to achieve as highly as possible.
2.25. For the purposes of section 3B, "inequalities of outcome" is the term used to describe a measurable difference in the achievement and attainment of children who fall within groups which share certain characteristics and those who do not. The term "attainment" denotes educational performance and the acquisition of the valuable skills, knowledge and attributes needed to succeed in life. The term "achievement" refers to the totality of skills and attributes embedded within the four capacities of Curriculum for Excellence and developed across the curriculum in school and through learning in other contexts. Assessment of attainment includes evaluation of a range of evidence on what children and young people learn and achieve throughout their school career. This includes Curriculum for Excellence levels, skills, qualifications, other awards and wider achievement. It is recognised that not all 'wider achievement' is measureable, for example, voluntary work and participation in sport, the arts or other activities in the community.
Defining "socio-economic disadvantage"
2.26. The term "socio-economic disadvantage" describes disadvantage caused as a result of a combination of inter-related social and economic factors such as poverty as a consequence of low income, health, housing or education. Poverty is accepted to be the most common driver for socio-economic disadvantage.
2.27. In the context of the "due regard" duty included at section 3B of the 2000 Act, education authorities are expected to focus predominantly on addressing the challenges experienced by learners from disadvantaged communities and those who experience poverty. This is an important distinction to make as not all children and young people who experience poverty live in disadvantaged communities.
Children from disadvantaged communities
2.28. Disadvantaged communities are those with a range of problems which arise due to lack of resources or opportunities, covering income at source (low or no income), health, safety, education, employment, housing, access to services and other personal circumstances or responsibilities. Children and young people from such communities are likely to suffer significant, sustained disadvantages as they grow up and as adults across some or all of these descriptors.
Other children who experience poverty
2.29. There are children and young people who do not live in disadvantaged communities but are nonetheless just as likely to suffer disadvantages across a number of financial, health and social outcomes. Such children and young people may live in communities that have sufficient or ample resource and opportunities but are unable to access them as a result of issues relating to poor health, safety, education, employment, housing and income that are specific to their household or family.
Approaches the education authority may take to fulfil its duties
Section 3B: Pupils experiencing inequalities of outcome - education authority's duty to have "due regard"
2.30. Ultimately, it is for individual education authorities to determine which processes require to be implemented in order to support them in fulfilling their "due regard" duty. Those processes must support authorities in understanding the impact that their strategic decisions have (or are likely to have) on educational outcomes for those children and young people impacted by socio-economic disadvantage.
2.31. In reaching this view, the authority is expected to consider the range of available evidence which is relevant to the decision in question. That evidence should include data on the effectiveness of past improvement activity undertaken within the authority as set out in the reports authorities are required to produce under section 3H of the 2000 Act (see paragraphs 4.5 to 4.8). Further, it must take account of learning from individual school improvement planning processes as well as relevant evidence developed in other areas. It may also be the case that evidence could emerge from other education authorities, or nationally through the National Improvement Framework and School Improvement Plan for example, to inform national discussion and which could be drawn upon, where that information is considered to be relevant to another education authority.
Potential sources of evidence
- The NIF - local and national annual plans/reports focussed on reducing inequalities of educational outcome and NIF implementation
- National Improvement Hub
- Local, national and international research
- Inspection and review findings
- Local authority self-evaluation/quality improvement processes
- School Improvement Plans and associated reports
- National initiatives
- Scottish Attainment Challenge  - local and national evaluation
- Children and Young People Improvement Collaborative ( CYPIC) 
- Relevant Developing the Young Workforce Key Performance Indicators
- Partnerships with other public services, employers, academia and third sector
- Insight data and national dashboard measures
- Relevant information supplied by teacher trade unions
- Feedback and information from parents and pupils
Corporate Parenting plans
Section 3B: Pupils experiencing inequalities of outcome - education authority's duty to consult and have regard to views
2.32. The authority must also obtain evidence by seeking and having regard to the views of key partners when seeking to fulfil the "due regard" duty (see paragraph 2.11).
2.33. Education authorities should work to further develop an understanding of the factors that give rise to inequalities of outcome arising from socio-economic disadvantage within their local context, and of how these can most effectively be addressed. The plans developed by education authorities should reflect how this understanding is being given effect, within the constraints arising from other legal responsibilities, organisational objectives and available resources (financial and otherwise) and will require the education authority to work with other services within the authority.
2.34. Education authorities will have to be able to evidence that they have fulfilled their "due regard" duty. This will be achieved, in part, through the preparation of annual plans and reports under sections 3F and 3H of the 2000 Act (see paragraphs 4.5 to 4.8). Authorities will also wish to consider how best they can demonstrate their efforts through the range of information and correspondence they produce on an on-going basis and any relevant planning and reporting documentation produced for scrutiny and improvement purposes.
2.35. Education authorities are encouraged to use recognised good practice when engaging with communities. For example the National Standards for Community Engagement set out best practice principles for the way that government agencies, councils, health boards, police and other public bodies engage with communities. They are not compulsory, but are good practice and can help deliver the outcomes we wish to achieve. The Standards, first launched in 2005 were reviewed and updated in 2015/16 to complement and support Scotland's developing community empowerment landscape and in particular the implementation of the Community Empowerment (Scotland) Act 2015.
2.36. The new revised National Standards for Community Engagement  were launched in September 2016 and reflect the main elements of good community engagement - Inclusion, Support, Planning, Working Together, Methods, Communication and Impact. More information is available on the VOiCE (Visioning Outcomes in Community Engagement) website.
2.37. Education authorities should use a range of consultative methods to engage a wide range of partners from a variety of backgrounds (this must include those persons specified in section 3B(4) of the 2000 Act, see paragraph 2.11) from a variety of backgrounds, providing them with the support they need to participate in decision making processes. For example, the education authority may choose to involve the wider Parent Forum, as opposed to the Parent Council alone. They may choose different approaches to consulting the parents of pupils experiencing inequality of outcome, from those they might consider in consulting other stakeholder groups, particularly where such parents may lack confidence in engaging with the school or where parents have difficulty fully interacting with schools. The education authority will also wish to consider how they involve pupils in the development of their plans.
2.38. Education authorities may find it helpful to have cognisance of their three yearly plans produced under the Requirements for Community Learning and Development (Scotland) Regulations 2013  which require the inclusion of a variety of information relating to engagement with communities.
Email: Hazel Crawford