Education authorities in Scotland should be paying attention at the back, following a decision under the Equality Act 2010 and its application to the planning of additional support for disabled pupils. A recent Tribunal decision (now upheld on appeal) found that a failure to provide an adequate Co-ordinated Support Plan (CSP) amounted to unlawful disability discrimination by the Council.
The duty to provide a CSP is not found in the Equality Act 2010 but in Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004. The fact that a failure to comply with a duty in this unrelated statute can amount to discrimination is of particular importance – especially for pupils who are both disabled and have additional support needs. Alert readers may recall the case of DM v. Fife Council in which the Council’s failures under the post-school transition duties under the 2004 Act, led to a finding of discrimination under the 2010 Act.
The Tribunal Decision
The Inner House of the Court of Session was asked to consider whether the Additional Support Needs Tribunal had been correct to conclude that City of Edinburgh Council had failed to make reasonable adjustments to support a child back to secondary school. The child had an autistic spectrum disorder and mental health issues and had stopped attending school. The failure to prepare an adequate CSP, in the Tribunal’s view, amounted to ‘discrimination on the grounds of disability’ in terms of the Act.
The child had been an intermittent attender at school since December 2013, following a deterioration in her mental health and behaviour since the summer. She stopped attending school completely on 22 December 2015. Although the school put in place some support measures, such as a virtual learning environment and a visiting teacher, her mother requested an assessment for a CSP in April 2014. The education authority delayed doing so, and a Tribunal hearing was fixed. The authority was told to produce a finalised CSP by 6 January 2016. While this was achieved, the Tribunal found its contents to be inadequate and requested that it was amended by 11 November of that year. The authority complied with that direction.
However, unsatisfied by the CSP, the child’s mother made a case that the authority had not made reasonable adjustments in respect of the child’s education, and that amounted to discrimination on the grounds of disability under the Equality Act 2010. Although the claim was couched in terms of a failure to make reasonable adjustments, the case centred on the CSP and how it was drafted.
The Tribunal concluded that where a pupil requires a CSP, in consequence of a disability, the authority’s failure to provide an adequate one amounts to discrimination arising from that disability in terms of s15 of the Equality Act 2010. The discrimination occurred in the way that the authority provided education for the child, and it subjected her to a detriment. The child was entitled to a CSP which set out adequate educational objectives and additional measures of support, specifying the professionals to provide that support. Without that, the CSP was inadequate and did not provide the strategic oversight and structure within which suitable additional support could be provided.
The Inner House agreed with the Tribunal’s assessment that the CSP contained inadequate educational objectives and additional measures of support and had no specification of the professionals who would implement these measures. The Tribunal, as a specialist body, concluded that the inadequacies in the plan resulted in a lack of coordination and strategic oversight for the child’s education.
This case is a boost for the much maligned CSP, and a warning shot for those authorities who increasingly see them as irrelevant. While the numbers of children with additional support needs have been increasing significantly in Scotland in recent years, the number of Co-ordinated Support Plans have been plummeting (as few as 0.1% of pupils in some areas)! As I have argued previously, there is life in the old CSP yet …
Failure to comply with the authority’s legal duties in relation to a CSP may now attract the attention of the Tribunal, not just in terms of the additional support needs legislation, but also under the Equality Act 2010. This is significant because the remedies available to the Tribunal in such cases are much broader, and likely to include orders which may include a require for wholesale changes in policy, staff training or – even worse – an apology!
Where the CSP is for a child placed by the authority in a grant-aided or independent special school, any Equality Act case would require to be brought in the Sheriff Court, rather than the Tribunal, bringing with it the prospect of compensation as well.
The full decision can be read here: City of Edinburgh Council v. R.  CSIH 20
Image Credit: https://www.flickr.com/photos/rossaroni/5021151117