In this, the fourth part of this series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the second of the “Key features of inclusion” : Participating.
The Christmas holidays are now over, and it’s time I got back to the old blogging. In the third part of this series on the new (2019) Guidance on the presumption to provide education in a mainstream setting, I will be looking at the first of the “Key features of inclusion” : Present.
In my earlier post on the Ashdown House School Case, I mentioned in passing, the enforcement powers of the Tribunal in Scotland:
Of course, in Scotland, the President of the Health and Education Chamber has specific powers to monitor the implementation of Tribunal decisions. In the event that such decisions are not implemented, a referral to the Scottish Ministers (who have enforcement powers and mechanisms in relation to both public and independent schools) may be made.
These powers have now been used for the first time since the Additional Support Needs Tribunals for Scotland were first set up (back in 2005). In a recent disability discrimination case, the child (who was the litigant in that case) complained that the education authority in question had not complied with the orders made by the Tribunal within their decision.
Rule 12 of the First-tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 state:
Power to monitor implementation of First-tier Tribunal decisions
12. The Chamber President may, in any case where a decision of the First-tier Tribunal required an authority to do anything, keep under review the authority’s compliance with the decision and, in particular, may—
(a) require the authority to provide information about the authority’s implementation of the First-tier Tribunal decision;
(b) where the Chamber President is not satisfied that the authority is complying with the decision, refer the matter to the Scottish Ministers.
So, while it is true that the Scottish Ministers do have enforcement powers in relation to both public and independent schools, the powers of the President do seem to be limited to decisions affecting education authorities. They would not be available where the responsible body was the proprietor of an independent school. Apologies. I will amend the original article to reflect this.
In this case, however, the orders were made in relation to an education authority and the President, having first considered the authority’s information provided, and thereafter allowed a short period in which to further progress compliance with the decision, considered that the authority had not complied with the decision. She therefore took the unprecedented step of referring the matter to the Scottish Ministers.
So, what will the Scottish Ministers do now? Section 70 of the Education (Scotland) Act 1980 and Section 27(9) to (11) of the Education (Additional Support for Learning) (Scotland) Act 2004 both give the Scottish Ministers powers to require education authorities to take certain action in relation to their functions under the 2004 Act (in the latter case) and in relation to the 1980 Act or “any other enactment relating to education” (in the former).
Given that this case was a claim (under the Equality Act 2010) and not a reference (under the 2004 Act) it seems likely that the Scottish Government will use the Section 70 route. This now has a statutory procedure, set out in the Section 70 (Procedure) (Scotland) Regulations 2017, and would ultimately allow Scottish Ministers to declare the authority to be in default of their duties, and to require them to take specified action to remedy that default.
Given that there is the possibility for this process to be used in relation to most Tribunal decisions, those drafting orders should bear in mind the need for any requirements to be clear and specific – it should be obvious whether a decision has been complied with or not. Orders should also, in appropriate cases, come with time limits. Otherwise it can be difficult to know when a delay (or even an ongoing process) might be viewed as a failure to comply.
This is a significant development, and a reminder to claimants and appellants with a decision in their favour that there is a way in which the implementation of the decision can be monitored and – if necessary – enforced.
It will not have escaped your attention that there is a UK General Election campaign underway at the moment. IPSEA (Independent Provider of Special Education Advice) have released a manifesto asking the next Government to address a “SEND system in crisis”. SEND is an acronym for Special Educational Needs and Disability.
Now, IPSEA is an organisation which does not operate in Scotland, and education is a devolved issue, so this is not directly relevant to the situation north of the border. The education system and the ASL framework in particular has significant differences. However, it remains of interest to see what the position is like elsewhere in the UK, and to compare that to the Scottish situation, in relation to each of IPSEA’s 7 “asks”.
1. A robust system of accountability so that local authorities know there are serious consequences if they flout the law.
The complaint here is that SEN law seems to be disregarded with few consequences for local authorities. In Scotland, there are fairly well developed and reasonably accessible mechanisms for dispute resolution and for putting right things which have gone wrong at the time they do. It is far less straightforward to seek restitution for things which have happened in the past (even in the relatively recent past).
IPSEA mention the ability of a family to pursue a complaint to the Local Government and Social Care Ombudsman (LGSCO) – and indeed there are examples of compensation being recommended by the Ombudsman in SEND cases.
In Scotland, the Scottish Public Services Ombudsman (SPSO) generally refuses complaints related to additional support needs, as these should be dealt with by the Tribunal or other statutory mechanism instead. It can, in theory, recommend compensation, but basically doesn’t. Professional negligence claims in education cases are difficult legally, and vanishingly rare. All in all, it remains the case (as IPSEA state) “so much of the burden is placed on parents when things go wrong”.
One “simple fix” would be to give disabled pupils facing discrimination at school the right to seek compensation (including damages for “injury to feelings”) in the same way that disabled persons facing discrimination in any other field can do, and that pupils facing any other form of discrimination can do. This would require the amendment of the Equality Act 2010, so it is a matter for the UK Government, and therefore this election, even in relation to Scotland.
Why is it – uniquely among victims of unlawful discrimination – that disabled school pupils are prevented from seeking compensation for the wrongs done to them?
2. Better joined up working across education, health and social care, particularly during the EHC needs assessment process.
There is no doubt that this is an issue in Scotland as well. A Co-ordinated Support Plan is required only where there is a need for co-ordination of support, but it can often be difficult to get “appropriate agencies” to contribute, attend meetings etc.
Is there an opportunity for a revised, statutory Child’s Plan scheme (freed from the shackles of the Named Person debacle) to facilitate this joined up working for children and young people with additional support needs?
3. Mandatory SEND law training for all those involved in assessing and meeting the needs of children and young people with SEND. The national qualification for SENCOs should also include a module on the SEND law framework.
I am a lawyer, and often deliver ASL law training to those involved in assessing and meeting the needs of children and young people with additional support needs. So, I clearly think it has its place – I would probably say that it’s not anyone’s top priority though.
The SQA recognise and certify HNC and HND courses in Additional Support Needs. While the HNC is described thus, “Candidates may work or wish to work as an assistant within a mainstream or specialised school”, there is no national or required qualification for Support for Learning Assistants in Scotland.
4. The extended powers of the SEND Tribunal currently being trialed under the national trial for a single route of redress should be made permanent, but also strengthened so that the Tribunal can make binding orders in relation o children and young people’s health and social care needs and provision.
SEND Tribunals are currently in the midst of a two-year national trial. During this time (April 2018 to March 2020), SEND Tribunals can make non-binding recommendations on:
- the health and social care needs specified in EHC plans;
- the health and social care provision specified in EHC plans related to the learning
difficulties or disabilities that result in the child or young person having SEN; and/or
- the social care provision specified in EHC plans that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970.
There are no current plans to confer similar powers on the First-tier Tribunal for Scotland (Health and Education Chamber), even on a trial basis. Perhaps the assessment of the trial period in England will prompt consideration of extended powers in Scotland, too.
5. Stronger guidance on SEN Support to ensure there is clarity over how children should be supported at this level and what good quality SEN Support looks like.
It is a difficult task to describe “what good quality SEN Support” looks like as it is, inevitably, going to vary from child to child, even where children share a diagnosis. “Supporting Children’s Learning”, the Code of Practice in Scotland, is being revised at the moment, and already contains some very useful examples illustrating the variety of approaches needed to meet the diversity of needs encompassed by the broad term “additional support needs”.
6. The jurisdiction of the LGSCO should be extended to enable it to investigate complaints about schools who fail to deliver SEN Support.
In Scotland, I feel that the process of independent adjudication effectively fills this role. Regular visitors to the blog will know that I am a fan of this system. The main problem is a simple lack of awareness.
7. Adequate funding to ensure that all children and young people with SEND receive the support they need to meet their individual needs whether that’s under SEN Support or through an Education, Health and Care plan.
It’s hard to argue with a call for “adequate funding” – agreeing what level of funding is actually adequate is another question. One point to note is that any additional funding for SEN Support in England would, in terms of the “Barnett consequentials“, result in a corresponding increase in the Scottish budget, though it would be for the Scottish Government (or potentially Scottish local authorities) to decide whether or not any such increase would go to additional support for learning.
Scottish Parliamentary elections are due to take place in 2021. Perhaps organisations working across the additional support needs sector in Scotland should even now be thinking about a similar manifesto?
In the first part of this series (Mainstreaming, I presume … (Part 1)) I looked at the legislative basis for the presumption of mainstreaming. In this next part, we will be looking at the question of inclusion.
The term “inclusion” is not used in the Standards in Scotland’s Schools etc. Act 2000, or in the Education (Additional Support for Learning) (Scotland) Act 2004. In fairness, it is a difficult concept to define in statutory terms. However, the explanatory notes to the 2000 Act, talk about the presumption of mainstreaming in these terms: “This section aims to establish what is effectively a presumption in favour of ‘mainstream education’ for all children in Scotland. It will strengthen the rights of children with special educational needs to be included alongside their peers in mainstream schools.” So, a right to inclusion has always been the intention of the legislation.
From an international perspective, it is Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which best outlines the position, with its requirement on signatories (including the UK) to “ensure an inclusive education system at all levels”.
It goes on to require:
a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;
b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live;
c) Reasonable accommodation of the individual’s requirements is provided;
d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;
e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.
Article 24(2), UNCRPD
The UNCRPD is not currently incorporated into UK or Scots law in the same way that the European Convention on Human Rights is, or the UN Convention on the Rights of the Child will be (under current proposals). However, it remains an international obligation (albeit one which the UK Government have accepted with two fairly substantial reservations – see ALLFIE on Article 24). Governments, including the Scottish Government, are required to have regard to the Convention in making law and policy and to take steps to ensure its effective implementation. The Convention can also be referred to by individuals taking legal action, as an aid to the interpretation of existing law (as it is presumed that neither Westminster nor Holyrood Parliaments would legislate in a way which is incompatible with its international obligations).
“A Fairer Scotland for Disabled People” is the Scottish Government’s delivery plan for the UNCRPD to 2021. However, this does not make specific mention of the right to inclusive education, or of Article 24, or of the presumption of mainstreaming. It does make mention of “Disabled people are visible and participating within communities, learning and education, volunteering and employment.” and “Equal opportunities for disabled people in education and employment.” – which captures some of it, I suppose.
The Ministerial Foreword to the guidance, however, could hardly be clearer in its intentions re: inclusion, with the Cabinet Secretary for Education spelling out the benefits of inclusion: “affords all children and young people the opportunity to be a part of a community, boosting their emotional wellbeing and aiding the development of social skills.” as well as being clear on the limitations of the presumption of mainstreaming: “Being present in a mainstream school should not be the primary marker of successful inclusion.” There is also, a very welcome (and child-centred) acknowledgement of the importance of how inclusion is experienced by the individual pupil.
The introduction to the guidance then gets to grips with what is meant by “inclusion”. This is helpful, actually. The “Scottish vision for inclusive education” is pretty vague as you might expect – but usefully links an inclusive approach to the achievement of equity and excellence (the tiresome two watchwords of modern education policy in Scotland).
What is more helpful, in my view, is the identification of four key features of inclusion:
The guidance goes on to consider each of these features in turn, as will I …
Edited (18 November, 2019) following helpful input from A24 Scotland.
In March of this year, the Scottish Government published revised guidance on the presumption of mainstreaming. It is now November, and I have not yet blogged about it (although I did post my consultation response on the draft revised guidance). I think my inaction may be due to the size of the task, so I have decided to break it down into smaller chunks, and deal with it a bit at a time.
We’ll start with what the law says about this. Introduced as an amendment during the passage of the Standards in Scotland’s Schools etc. Act 2000, the ‘presumption of mainstreaming’ is found in Section 15 of that Act.
The phrase ‘presumption of mainstreaming’ is an odd one to start with. It is not used in the legislation at all. The crossheading used in the Act is “Requirement for mainstream education” and the section heading is “Requirement that education be provided in mainstream schools”. In legal terms, there is no such thing as a mainstream school, and so the section itself, as we will see, takes the form of a prohibition on providing education in special schools (with some exceptions).
Interestingly, the guidance itself takes a slightly different title: “Guidance on the presumption to provide education in a mainstream setting“. So, for the same single section we have: mainstream education, mainstream schools and mainstream setting. What the difference is between these three, if any, is not clear.
The Section itself says this:
15 Requirement that education be provided in mainstream schools
(1) Where an education authority, in carrying out their duty to provide school education to a child of school age, provide that education in a school, they shall unless one of the circumstances mentioned in subsection (3) below arises in relation to the child provide it in a school other than a special school.
(2) If a child is under school age, then unless one of the circumstances mentioned in subsection (3) below arises in relation to the child, an education authority shall, where they—
(a) provide school education in a school to the child, provide it in; or
(b) under section 35 of this Act, enter into arrangements for the provision of school education in a school to the child, ensure that the arrangements are such that the education is provided in, a school other than a special school.
(3) The circumstances are, that to provide education for the child in a school other than a special school—
(a) would not be suited to the ability or aptitude of the child;
(b) would be incompatible with the provision of efficient education for the children with whom the child would be educated; or
(c) would result in unreasonable public expenditure being incurred which would not ordinarily be incurred,and it shall be presumed that those circumstances arise only exceptionally.
(4) If one of the circumstances mentioned in subsection (3) above arises, the authority may provide education for the child in question in a school other than a special school; but they shall not do so without taking into account the views of the child and of the child’s parents in that regard.
The legislation is fairly clear on its expectations, and it is fair (to my mind) to describe this as amounting to a ‘presumption’ of mainstreaming.
One interesting quirk of all of this is that the Education (Additional Support for Learning) (Scotland) Act 2004 – which postdated this legislation coming into force – changed the definition of “special school” – which effectively changed the scope of this duty.
Section 29(1) of the 2004 Act, defines ‘special school’ as
(a) a school, or
(b) any class or other unit forming part of a public school which is not itself a special school,
the sole or main purpose of which is to provide education specially suited to the additional support needs of children or young persons selected for attendance at the school, class or (as the case may be) unit by reason of those needs.
So a pupil who attends a Language and Communication Unit (for example) which sits within a mainstream school, is not being educated in a mainstream setting or receiving a mainstream education, according to the Act – regardless of how many opportunities for joining in activities with mainstream peers may be offered.
The Act also does not address situations in which there may be a split placement. Is a pupil who attends a mainstream school part-time and a special school part-time being educated in accordance with this statutory requirement, or not?
Finally, the presumption of mainstreaming appears as a ground of refusal in the legislation concerning placing requests (Schedule 2 of the 2004 Act). Ground for refusal 3(1)(g) applies where the ‘specified school’ (i.e. the one requested by the parent) is a special school, if placing the child in the school would “breach the requirement in section 15(1) of the 2000 Act”.
As set out in the recent Upper Tribunal case of Midlothian Council v. PD, this effectively means that, for a parent to be successful in a placing request for a special school, they will have to show that one or more of the exceptions ( a to c, above) applies.
That more or less covers the legislation. Next up … Inclusion and the presumption.
Since the beginning of 2018, further appeals in additional support needs cases go from the Tribunal to the Upper Tribunal for Scotland. It has taken until now, however, for a case to actually get as far as that and yield a decision for us to look at. Let us set aside for the moment my own personal disappointment that it was not one of my cases, and the fact that it is only a determination of the question of permission to appeal, and see what the case actually says.
The case in question is Midlothian Council v. PD  UT 52 (PDF) and it is an appeal against a decision of the First-tier Tribunal for Scotland (Health and Education Chamber) to grant a placing request appeal in favour of the appellant (the parent of a child with additional support needs).
The Scottish Government recently published “The Right Help at the Right time in the right place” – Scotland’s Ten Year Strategy for the Learning Provision for Children and Young People with Complex Additional Support Needs.
The Ten Years in question are 2017-2026, with the commencement of the strategy being taken as the date that a draft was published for consultation – which is an interesting approach!
There is no separate legal definition of the term “complex additional support needs” and (perhaps wisely) this strategy does not attempt to come up with a definition of its own. Instead, there is a “working description” outlined on p9, which includes:
- children and young people with a Co-ordinated Support Plan (CSP);
- children and young people at stage 3 or 4 of an education authority’s staged intervention model;
- children or young people who attend a grant-aided or independent special school.
It is also worth noting the descending capitals in the title, with “Right Help” being followed by “Right time” before finally giving way to the “right place”. Does this imply an order or priority or importance? Or, am I reading too much into things?
Context for the strategy
This strategy fits within the Scottish vision for inclusive education, which reads:
Inclusive education in Scotland starts from the belief that education is a human right and the foundation for a more just society. An inclusive approach which recognises diversity and holds the ambition that all children and young people are enabled to achieve to their potential is the cornerstone to achieve equity and excellence in education for all of our children and young people.
Inclusive practice is defined by reference to four key features of inclusion:
You’ll recognise these from the revised guidance on the presumption of mainstreaming.
The big question behind all of this is funding. Specifically £11 million. Which is what the Scottish Government currently spends on the grant-aided schools (Harmeny, East Park, Royal Blind School, Donaldson’s, Corseford, Stanmore House, and the Scottish Centre for Children with Motor Impairments (SCCMI)) and three national services (Enquire, CALL Scotland and the Scottish Sensory Centre).
The strategy is all about commissioning services, and seeks in particular to ensure that “the impact of any service commissioned results in capacity building across local authorities as well as at national level,”. This suggest a move away from funding schools, and towards funding research, professional development and outreach services.
To sit alongside this document, an Operational Commissioning Strategy is being prepared. This will complement the Ten Year strategy, and is to be published “in late 2019”.
The Commissioning process will have heavy involvement from the third sector who – it is anticipated – will take a lead in applying for funding and delivering services. Other organisations or partnerships may also apply for funding. Any change to the current funding arrangement will be introduced in such a way that it will not prejudice placements of children and young persons already support by the existing recipients of funding.
As I mentioned earlier, professional development may well be a key plank of this strategy as it is implemented. Indeed, the strategy states that “By 2026 there should be a well-established national leadership programme at post-graduate level, which addresses the requirements of effective leadership in the context of schools and services for children and young people with complex additional support needs.”
Parental engagement is also mentioned throughout the strategy. A new resource “Supporting Disabled Children, Young People and their Families” was put out for consultation in April 2018, and highlights good practice on rights and information, accessibility of support, and transitions.
The Scottish Schools (Parental Involvement) Act 2006 places a specific duty on local authorities to consider how their parental involvement strategies make provision for parents of children with complex additional support need. The Scottish Government will include specific guidance on this point as part of refreshed national guidance on parental involvement.
The strategy also makes passing reference to children’s rights, and expresses a desire that a positive culture, in which children are welcomed, nurtured, listened to, and have their views heard and their rights protected, is promoted in Scotland.
The changes to the Education (Additional Support for Learning) (Scotland) Act 2004 for children aged 12-15 is highlighted, as is the children’s support service, My Rights, My Say.
A version of the strategy which is accessible for children and families will be made available in “late 2018”.
The proposal here is for a “phased release of funding from the current commitments”, with the grant-aided special schools potentially having to adapt to a new funding landscape in which they access funding on a different basis – or not at all.
An evaluation framework for the strategy is to be developed, with annual reporting against that framework from 2021.
Much detail still to follow, including the Operational Commissioning Strategy and the practice of education authorities in commissioning in future. Whether this will have an impact of statutory placing requests, or planning documents, for example, will remain to be seen.
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I bring news of an interesting disability discrimination case involving an independent school in England. The case was determined by the Upper Tribunal, which is basically the appeal route as exists in Scotland from the Health and Education Chamber (previously known as the Additional Support Needs Tribunals).
The case is that of Ashdown House School v. JKL & MNP (not their real names!) and involved a pupil who was referred to for the purposes of the case as “Bobby”.
The facts of the case
Bobby was ten years old and a pupil at Ashdown House School, who has ADHD, sensory processing difficulties and emotional and social difficulties arising from trauma in his early childhood and in the womb. He is a disabled person in terms of Section 6 of the Equality Act 2010.
He was permanently excluded from the School on 9 February 2019. He was excluded for aggressive behaviour, including placing another pupil in a headlock and what the school describes as “37 incidents of unprovoked aggression”. The school admitted that the exclusion amounted to unfavourable treatment, but maintained that the exclusion was a proportionate means of achieving a legitimate aim. The aim in this case was to ensure the health and safety of staff and pupils at the school. For their part, the parents accepted that this was a legitimate aim, but not that the school had acted proportionately.
The Tribunal (at first instance) found that the exclusion was not proportionate, and was therefore unlawful discrimination. This was for a number of reasons. The Tribunal found that while the school had made a number of reasonable adjustments, there were other reasonable adjustments which could have been made (including anger management sessions, consulting with the local authority, and allowing parents to seek a review of Bobby’s Education, Health and Care Plan (EHCP), or seeking advice from CAMHS regarding his medication). The Tribunal also found that the exclusion came “like a bolt out of the blue” in that neither pupil nor parents had been warned it was a possible consequence of the incidents. There was also evidence that other violent incidents within the school (involving other, non-disabled pupils) had been dealt with less severely.
The Tribunal ordered Bobby’s immediate readmission, and that the school formally apologise to Bobby.
The school appealed to the Upper Tribunal.
Legal questions arising on appeal
In considering the appeal, the Upper Tribunal had to consider four discrete points:
- Does the First-tier Tribunal (SENDIST) have the power to order reinstatement of an excluded pupil to school?
- How can decisions of the First-tier Tribunal (SENDIST) be enforced, if not by the Tribunal itself?
- In the light of the courts’ traditional reluctance to order specific performance of contracts involving personal service/contact or supervision, is an order to reinstate a pupil at an independent school (in terms of a contract between the parents and the school) appropriate?
- Is it appropriate to order an apology in special educational needs and disability (SEND) cases?
The Upper Tribunal’s decision
The Upper Tribunal dismissed the appeal, and Bobby was – ultimately – allowed to return to school. I understand that he also received his apology.
The school argued, that in the case of an independent school, the Tribunal would be restricted to making a declaration of discrimination, and making recommendations for the school to consider. The Upper Tribunal rejected this argument. The wording of the Act permits Tribunal to make such order as it thinks fit (excluding an order for payment of compensation). This wording obviously includes a power to order reinstatement.
At some considerable length, the Upper Tribunal considers how one of its decisions might be enforced, if not complied with.
Although the Tribunal itself does not have the power to enforce its own decisions in that regard, one of the parties to the action can rely on the inherent power of the High Court to commit for contempt of court in the event of non-compliance with the order or the [Equality and Human Rights Commission] may itself take proceeding under s.24 of the 2006 Act to achieve the same end. The School, however, is not amenable to judicial review because it is not a public body and in expelling the pupil it was not exercising public law functions.
Of course, in Scotland, the President of the Health and Education Chamber has specific powers to monitor the implementation of Tribunal decisions. In the event that such decisions are not implemented, a referral to the Scottish Ministers (who have enforcement powers and mechanisms in relation to both public and independent schools) may be made.
Edit – while it is true that the Scottish Ministers do have enforcement powers in relation to both public and independent schools, the powers of the President under Rule 12 of the Tribunal’s Procedure Rules do seem to be limited to decisions affecting education authorities. They would not be available where the responsible body was the proprietor of an independent school. Apologies. In such cases, a parent or pupil might approach the Scottish Ministers directly (or the Registrar of Independent Schools) to progress their complaint.
The Upper Tribunal determined that while the Tribunals should have regard to the historic reluctance of the courts to impose specific performance of a contract which involves personal service and supervision, and the reasons for that reluctance, this did not preclude the Tribunal from making such an order in appropriate circumstances.
The Upper Tribunal suggested that it would be “sensible for a Tribunal considering a disability discrimination claim in the future to consider matters such as whether it is practicable to make an order for reinstatement and, in cases where the applicant has caused or contributed to the expulsion, whether it would be just to order reinstatement.”
In finding that an order for an apology was appropriate in these circumstances, the Upper Tribunal set out the following guidance for future cases (likely to be relevant in Scottish cases, too) repeated largely verbatim below:
- The Tribunal does have the power to make an order for an apology.
- An apology may have a wider purpose than merely preventing further discrimination against the child in question. To the extent that an apology is an assurance as to future conduct, an order that there be an apology gives teeth to a declaration of unlawful discrimination.
- There can be value in an apology: apologies are very important to many people and may provide solace for the emotional or psychological harm caused by unlawful conduct. An apology might reduce the mental distress, hurt and indignity associated with a permanent exclusion. It might also assist with recovery, forgiveness and reconciliation. An order that there be an apology can be regarded as part of the vindication of the claimant.
- A tribunal should consider whether the apology should more appropriately be made to the child or to their parents. In the case of very young children the latter may be more appropriate for obvious reasons.
- An order to make an apology may well be appropriate when there is already an acceptance that there has been discrimination or unlawful conduct.
- However, the fact that there has been a contested hearing and that the respondent has strenuously disputed that there has been any discrimination or unlawful conduct is not decisive against ordering an apology.
- Nevertheless, particularly where there has been a dispute or a contested hearing, the tribunal should always consider whether it is appropriate to make an order and bear in mind that it may create resentment on one side and an illusion on the other, do nothing for future relations and may make them even worse.
- Before ordering an apology, a tribunal should always satisfy itself that it will be of some true value.
- A tribunal should always be aware that there may be problems of supervision if it accepts responsibility for overseeing the terms of the apology which can result in drawn out arguments over wording.
The decision of the Upper Tribunal in this case is likely to be of interest and use in a number of Scottish cases, especially those involving questions of admission and exclusion to an independent school. However, the points of guidance on the question of an apology are of broader application and I anticipate will be widely cited within the Health and Education Chamber.