27 March 2018

In this case the pupil, who had autism, began refusing to go to school when her mental health and behaviour deteriorated significantly. The pupil’s disability significantly limited her ability to engage with education unless given significant support.

The pupil’s mother requested assessment for a coordinated support plan (“CSP”) in terms of section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004. The Council failed to do so and the Additional Support Needs Tribunal (as then was) (“the tribunal”) issued a direction requiring that a finalised CSP be issued. The Council issued a finalised CSP. The tribunal decided the CSP was inadequate and amendments were ordered.

The claim

It was argued before the Tribunal that the Council had failed to provide an adequate and effective education which amounted to unlawful discrimination. The tribunal held that where a pupil, in consequence of disability, has additional support needs such that a CSP is required, a failure to provide an adequate CSP is unfavourable treatment and discrimination arising from disability and therefore unlawful. The absence of an adequate CSP resulted in “a lack of strategic oversight and a failure to co-ordinate measures of support and reasonable adjustments which would help the child”.

The appeal

The Council appealed. The Court of Session dismissed the appeal saying “As a specialist body the tribunal was more than entitled to conclude that the deficiencies in the plan would have these consequences. It was a reasonable conclusion to draw given the failure to provide the responsible persons with an appropriate educational objective or objectives supported by the expression of sensible and practical means to achieve the desired result.”

The Court said that: “Where it is needed, a CSP is an important part of the authority’s educational responsibilities... The CSP should set out the educational objectives for the child and the measures necessary for their fulfilment... We identify no error in the tribunal’s view that the deficiencies in the plan will have impacted adversely on the education provided to the pupil. In any event, we doubt whether the court would have been entitled to substitute any different opinion of its own for that of the specialist body entrusted with making these decisions. We see no need for any findings in fact over and above those made by the tribunal.”

The Court was satisfied that the legal test had been made out. If the pupil had not been disabled there is no reason to suppose that there would have been a CSP. It was, therefore, the disability which resulted in the need for the CSP. The CSP was the unfavourable treatment in this case and in the absence of any evidence that the treatment was justified, the claim was successful.

Summary

This case is a good example of wide scope of a claim under section 15 of the Equality Act, unfavourable treatment because of something arising in consequence of disability (which is not justified). The Court looked at some of the authorities from employment law cases to bolster its conclusion.

Disability discrimination law can be complex and care is needed to ensure that any potentially unlawful treatment can be justified – Is there a legitimate interest being protected, Is the measure rationally connected to that interest and is the way in which the measure operates a proportionate way of achieving the aim? That is not an easy task. When managing disabled pupils and staff, bear in mind the wide scope of the Equality Act and applicable guidance.

The full judgment can be found here.

Contact: David Hoey, Partner dho@bto.co.uk T: 0141 221 8012