Legality of school music fees challenged with crowdfunding campaign

First published in The Herald on 27 February 2019

AN AYRSHIRE lawyer is preparing to put together a crowdfunding campaign to challenge whether the widespread practice of charging fees for musical instrument tuition in schools is lawful.

The majority of Scotland’s 32 local authorities have either introduced or increased fees for instrumental tuition in the current school year, with some hiking the cost by as much 85 per cent.

Although the Scottish Government provides funding to local authorities so they can provide education free of charge, instrumental tuition – which is provided outside the classroom setting – is classed as an additional discretionary service.

Because of that, individual councils have taken the view that it is up to them whether they charge for music lessons or not, with umbrella organisation Cosla’s position being that it is “a matter for local democratically elected representatives”. Given the budgetary pressures most councils are now under, many have decided that “some level of charging” is required.

However, Ralph Riddiough, a partner at Ayr firm Kilpatrick & Walker who plays trombone in the Dalmellington Band, believes that it is legally incorrect to class instrumental tuition as discretionary and non-core to the curriculum, meaning the charges have been applied in contravention of the 1980 Education Scotland Act.

“The fees turn on the word ‘discretionary’,” he said. “Everyone seems to think that education is only education if local authorities deliver it using the money sent to them by the Scottish Government.

“Discretionary really means that local authorities deliver the tuition and they fund it from their own funds. The money used to pay for tutors and the cost of repairing instruments comes from local authorities’ own coffers and that’s why the word discretionary has come about. That seems to be fair game for fees.”

Key to Mr Riddiough’s argument is that fact that the Scottish Parliament’s education and skills committee last month issued a report that found “a lack of clarity regarding whether instrumental music tuition necessary to provide adequate preparation for SQA examinations in the senior phase can legitimately be subject to charging”.

It added that “while Cosla states that instrumental music tuition is not statutory, there is a risk that this position interprets legislation in light of practice rather than adopt practice in light of legislation”.

This week Cosla, which declined to comment on the legality of tuition fees, issued guidance stating that pupils preparing for an SQA exam in music – who are required to show proficiency in two different instruments – should not have to pay for lessons received outside the class.

However, as the education and skills committee report says that “tutors are vital to ensuring that pupils have access to a diverse range of instruments and a sufficient level of teaching time in order to present for SQA examinations” and that “instrumental music tutors should be considered to be part of core education provision”, Mr Riddiough believes the guidance should apply across the board.

He plans to launch his fundraising campaign on crowdfunding site CrowdJustice in the coming weeks, with the intention of taking one local authority to court to ask a judge to clarify the position.

“Asking a court to decide what is and what is not education if it isn’t delivered in a classroom of 30 kids carries risk, I know,” he said.

“But I think the case is strong. Just because we have figured out that delivering excellent musical instrument education is best achieved outwith a classroom setting doesn’t mean it isn’t education.”

The Scottish Government has consistently said it is up to local authorities to decide whether to charge for music tuition or not, but a spokesman noted that the guidance on the provision of lessons for those sitting SQA qualifications in music “is clear – it should be provided free of charge”.

“It is for local authorities to decide how instrumental music tuition for children and young people is provided in their areas, and councils should consider the benefits that learning a musical instrument can have on wellbeing and on attainment,” the spokesman said.

“While respecting the autonomy of local councils, we would be concerned by any decision that reduced access to instrumental music tuition.”