Additional Support Needs Update (Issue 5)

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This edition looks in particular at the incorporation of the UN Convention on the Rights of the Child into Scots law, with the support spotlight this edition on Dekko Comics.

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Additional Support Needs Update (Issue 5)

 

Ashdown House School case (a summary)

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:

  1. Does the First-tier Tribunal (SENDIST) have the power to order reinstatement of an excluded pupil to school?
  2. How can decisions of the First-tier Tribunal (SENDIST) be enforced, if not by the Tribunal itself?
  3. 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?
  4. 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.

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.

Conclusion

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.

 

Action on Unacceptable Unacceptable Actions Policies

One thing I come across from time to time is the application of “Unacceptable Actions Policies” by education authorities to parents raising concerns about their children’s additional support needs.

Typically, this might be used where an education authority have concerns about the frequency or nature of complaints made to school or other staff by a particular parent.  Where used, the effect would usually be to restrict the ways in which a parent is allowed to make contact with the school.  For example, they might be given a specific person to contact, and asked to do so only by e-mail.  Some examples might mean a parent is asked not to attend the school premises, except by prior arrangement – which can extend to not attending to drop off or pick up the child at school.

In considering this issue further, I have had a look at the policy in place for Glasgow City Council.  This is not because Glasgow are any worse than anyone else in this regard, but simply as they happen to the Council involved in the most recent case I looked at.  Fair play to Glasgow, it must be said, for making the policy freely and easily accessible on their website.  I also looked at decisions of the Scottish Public Services Ombudsman (SPSO) I was able to find which were relevant to this type of policy.

Glasgow’s policy specifies three different types of unacceptable actions by customers:

  1. Aggressive or Abusive Behaviour;
  2. Unreasonable Demands; or
  3. Unreasonable Persistence.

Aggressive or Abusive Behaviour

The policy helpfully distinguishes between anger (which it implicitly recognises may be justified) and aggression (which is not).  I have some slight concern that “it is sufficient for staff to feel afraid, threatened or abused for the council to consider a customer’s behaviour or actions unacceptable”.  This appears to be the case regardless or whether it is objectively reasonable for the member of staff to feel that way.  To give an extreme example, a staff member who felt threatened simply due to a parent’s stature and racial origin is surely not the sort of thing the policy intends to cover.  It also means that any declaration that staff felt threatened is effectively taken at face value without any enquiry into the circumstances of the case.

However, these are fairly extreme examples, and this section is by and large unobjectionable.

Unreasonable Demands

This covers things like insisting on speaking to a particular member of staff, continuing to raise the same issue in the hope of eliciting a different response, focusing on a “trivial” matter, insisting that a response is not adequate in spite of “a large volume of correspondence”.  Such things amount to unacceptable actions if they start to take up too much staff time.

We are clearly into much more subjective territory here, and possibly in danger of categorising understandable (and often necessary) parental advocacy as unacceptable.  Of course, the expectation is that the Council will apply the policy reasonably, but it leaves much effectively to the discretion and viewpoint of staff against whom (or against whose colleagues) complaints may be being made.

Unreasonable Persistence

“The way in which these customers approach us may be entirely reasonable, but it is their persistence in continuing to do so that is not.”

Basically, the Council reserve the right here to cease engagement with a customer on an issue at the point the matter is referred to the SPSO, or otherwise reaches the end of a complaints or other process.  Which is, in most cases, going to be fair enough.

Let’s have a look at some real life examples, as considered by the SPSO…

SPSO Decision 201806323, Glasgow City Council

In this instance, the Council placed restrictions on Ms. A under their policy.  However, in doing so, they failed to let her know about her right to appeal against that decision, they failed to let her know what conduct of hers had led to the decision, they failed to keep proper records indicating their reason for imposing the restrictions, and they failed to review the decision on a six monthly basis (as their policy required).

While the SPSO were keen to point out that “The Council are entitled to apply their UAP” and that “we are not an appeal route for that decision”, they did uphold the complaint against the Council and made a series of recommendations to improve the operation of the policy in future.

SPSO Decision 201702414, East Dunbartonshire Council

The Council’s policy was applied in this case due to correspondence from Mr. C placing unreasonable demands on the business of the Council.  The Council, however, confirmed that they did not / could not consider properly made Freedom of Information (FOI) requests to fall within the category.  As they have a statutory duty to comply with same, these could not be regarded as  imposing unreasonable demands.

However, the Council were then unable to produce to the SPSO much in the way of non-FOI correspondence.  The SPSO therefore found that Council had unreasonably applied their policy in this case.

SPSO Decision 201701620, Aberdeenshire Council

The complaint in this case (made by Mr & Mrs C) was not upheld.  The Council had followed its own process correctly.  They had identified the conduct they felt was unreasonable, and had warned that it may lead to the policy being invoked.  They had written to clearly explain the restrictions being imposed, and explained the process for reviewing the decision (at least every three months).

SPSO Decision 201306096, Glasgow City Council

This complaint was upheld in part.  The SPSO determined that the application of the policy to Mr. A had taken place after proper consideration had been given to the nature and frequency of his communication with staff.  There was no evidence that the Council had been inconsistent or that they had been unreasonable in not inviting Mr. A to meetings regarding the care of his child.

However, the process for review of the decision had not been properly followed, and the complaint about the policy itself had been delayed.  Appropriate recommendations on these points were made.

SPSO Decision 201407836, Scottish Borders Council

While not upholding a complaint by a member of the public who had been turned away from a public event duet to his behaviour, the SPSO did recommend (for the sake of completeness) that the witness to the incident identified by Mr. C be contacted to see whether their testimony would have an effect on the decision.

SPSO Decision 201202410, Glasgow City Council

The SPSO found that the complainer in this case met the criteria for bringing the policy into effect – in terms of her behaviour and demands (which were related to complaints on noise).  While the Council would no longer respond to her e-mails or phone calls, they had left open a means by which she could complain about anti-social behaviour or noise, and had continued to receive and respond to her letters.

As we might expect from the SPSO, these focus largely on procedural elements.  They are nonetheless a useful reminder of the need for clarity in why a policy is being applied, the issueing of a warning beforehand, and the ability to access processes for appeal and/or review of the decision.

One important postscript to all of this is to bear in mind Section 27 of the Equality Act 2010 which forbid discrimination by way of victimisation.  The legislation designates complaints that a person or body had breached the 2010 Act as protected acts.  It is unlawful for an education authority to subject someone to a detriment due to them making an allegation of unlawful discrimination (whether they refer to the Act or not).  So, a parent making allegations to a school of unlawful disability discrimination (e.g. a failure to provide reasonable adjustments for a disabled child) should not be subject to any kind of detriment (e.g. having their contact with the school restricted).  The same protection applies to bring court of Tribunal proceedings under the Act, or being a witness in such proceedings.  The protection of the Act does not apply to false allegations which are made in bad faith.

Here is an example of these provisions being used in relation to allegations of discrimination on the grounds of religion or belief under older equivalent legislation: Council pays out in school religion row.

There are no equivalent protections under the Education (Additional Support for Learning) (Scotland) Act 2004, although it may be argued that in many cases, an allegation of failure under the 2004 Act for a disabled pupil, will also amount (in effect) to an allegation of unlawful disability discrimination – and therefore be protected in the same way.

Image Credit:

http://www.thebluediamondgallery.com/typewriter/c/complaints.html