This document discusses determinations made by the Scottish Government regarding school closure proposals. It notes that differing interpretations of the 2010 Act have led to many cases being called in. The aim is to significantly reduce the number of cases requiring to be called in by improving the quality of proposals. Key drivers for change include experience applying the 2010 Act, a report by the Rural Commission, and a recent judicial review. The document outlines how determinations and decisions will now be made, focusing on whether education authorities have properly followed the 2010 Act and considered all relevant factors. While the recent court ruling provides clarity, amendments to the 2010 Act may still be needed to fully address the issues.

1. “Determinations – Past, Present &
Future”
Jonathan Moore
School Infrastructure Unit

2. The Problem
• Differing interpretations of 2010 Act have led to
too many cases being called in
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85 closure proposals under 2010 Act
36 (42%) called in
27 consented (21 with conditions, 6 unconditionally)
9 refused – including 4 in WIIC subject to Judicial
Review

3. What is the aim?
• To reduce significantly the number of cases that
require to be called in.
• An outcome shared by Scottish Government &
Local Government
• Achieved by working together to improve the
quality of proposals coming forward.

4. Drivers for Change
• Experience in applying the 2010 Act
• Rural Commission
• WIIC v Scottish Ministers Judicial Review &
Appeal

5. WIIC v Scottish Ministers Judicial Review
• Court concluded that:
– Circumstances when Ministers can call in a closure
proposal are very limited; and
– Having called in, Ministers then to consider the merits
of the proposal

6. “Calling in”
• In their application of s17(2) of the 2010
Act, Ministers will consider:
– Whether or not there has been a failure in a
significant regard by education authority to comply
with the 2010 Act;
– Whether the education authority may have failed to
take proper account of a material consideration
• Call in letters will set out what Ministers see as a
failure & why they consider it to be in a
significant regard

7. “Determinations”
• Ministers will look at the totality of what is
proposed and determine:
– Whether there is a failure in a significant regard to
comply with the requirements of 2010 Act so far as
they are relevant to the closure proposal in terms of
s17(2)(a) of 2010 Act ;
– Whether there is a failure to take proper account of a
material consideration relevant to the closure
proposal in terms of s17(2)(b) of the 2010 Act; and
– Whether the decision to implement a closure proposal
is one that a reasonable education authority could
have reached

8. “Decisions”
• Where Minsters conclude no failure and
decision a reasonable one – consent will be
granted (with or without conditions);
• Where Ministers conclude failure - consent
may or may not be granted (with or without
conditions if granted);
• Where Ministers conclude failure serious &
cannot be remedied by conditions or if
decision to close unreasonable - consent will
be refused; and
• Determination letters will set out Ministers’
reasoning behind their decision.

9. Does that achieve aim?
• Court has clarified how Ministers to apply the
2010 Act
• Good start - but on its own does not fix the
problem nor does it address Rural Commission
or other issues raised
• Need to make some amendments to 2010 Act