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The latest newsletter is now available to download. Do please read it, share it and subscribe using MailChimp for future editions.
Do let me know what you think about the newsletter in the comments.
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:
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 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.
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:
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.
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.
“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.
Back to school, and the return of the school run. For many children this will mean travelling in vehicles (usually buses or taxis) arranged for them by the school or education authority.
This school year marks the beginning of the requirement for the publication of annual seatbelts statements. As of 1 August 2019 (or as soon as reasonably practicable thereafter) each school authority (i.e. education authority, proprietor of an independent school, or managers of a grant-aided school) must publish a seatbelts statement. This sets out what steps the authority has taken to comply with the seatbelts duty and to promote and to assess the wearing of seat belts by pupils carried by the authority’s dedicated school transport services.
The principal duty, which has been in force since 1 August 2018 for new school transport contracts, and will apply from 1 August 2021 for any remaining existing school transport contracts is as follows:
A school authority must ensure that each motor vehicle which the authority provides or arranges to be provided for a dedicated school transport service has a seat belt fitted to each passenger seat.
This covers both home/school transport and transport used for school trips, sporting events, residentials etc.
The Scottish Government has published guidance for schools: Seat Belts on School Transport (Scotland) Act 2017 – Guidance – which includes a template for the annual seat belt statement.
Of course, pupils with additional support needs make up a goodly proportion of those requiring school transport. The guidance notes that:
Some pupils travelling on dedicated school transport may need specialist provision, such as smaller children needing a height-adjustable seatbelt, adjustable straps, lap belts, or adaptations which are required because a young person has Additional Support Needs. The Scottish Government recognises that school authorities, particularly local authorities, are better placed to conduct needs assessments in line with their existing obligations regarding education provision more generally and to make provision or enter into contractual arrangements to allow for this.
There’s not much in the guidance on this topic (in fact, it’s basically just this) but there are two assumptions which seem to run through this paragraph. First, school authorities should conduct needs assessments in relation to adaptations required for pupils with additional support needs to use school transport. Second, those adaptations should be made (either directly, or by ensuring that any contract for transport requires them to be made). This is broadly in line with the reasonable adjustments duty for disabled pupils under the Equality Act 2010.
The Scottish Government is committed to enshrining the United Nations Convention on the Rights of the Child (UNCRC) into the domestic law of Scotland. The overall aim is to ensure that all policy, law and decision-making in Scotland takes into account children’s rights and empowers children and young people to know and understand their rights – asserting and defending them where that is needed.
This commitment is great news in principle, but how it will be incorporated into the law of Scotland is a detail that has not yet been resolved. Wholesale legislative change? Or piecemeal changes to domestic legislation ? The Scottish Government have put this question – and other implementation issues – out to Consultation.
It will come as no surprise to regular readers that my preference is for the most comprehensive incorporation possible. My response supports full incorporation of the UN Convention into law by drawing on the mechanisms used to embed the European Convention of Human Rights into UK law (and the model adopted by the Equality Act 2010 in relation to the public sector equality duty). By combining the two approaches, public authorities would be explicitly prohibited from acting in a way which is contrary to the UN Convention and breaches could be challenged in the Courts.
My response to the consultation is reproduced (with some editing for readability) below.
Last week the Scottish Government published revised guidance on school attendance.
The guidance is called Included, Engaged and Involved Part 1: A Positive Approach to the Promotion and Management of Attendance in Scottish Schools. As the name suggests, there is an immediate link being made here with school exclusion – Part 2 of the “Included, Engaged and Involved” is the exclusions guidance (which is, by and large, very good). Anyone who has read the Not Included, Not Engaged, Not Involved research will know the very real overlaps between non-attendance at school and informal exclusions from school for disabled pupils / pupils with additional support needs.
I come across issues of attendance and non-attendance in my capacity as a solicitor and also as a member of a local attendance council for a Scottish local authority. More often in the first capacity, the situation is that a child with additional support needs is “not coping” with school and this is manifesting itself in behaviour which makes it not safe for them to attend, or in a refusal to attend school – often expressed in very definite terms.
Note already the terminology used – it is the child who is not coping, rather than the school environment (say) or teacher practice (for example) which requires amendment.
Pupils with additional support needs have a lower rate of attendance than pupils with no additional support needs, with the difference being particularly stark in mainstream secondary schools (88.6% compared to 92.1%) 2017 stats. Given this known disparity, it is disappointing that the section on Additional Support for Learning occupies half of one page (in a fifty page document). There are four paragraphs, three of which explain what additional support needs means as a term and a little bit about Co-ordinated Support Plans.
The other paragraph, however, does sort of get to the heart of matters (in all fairness):
Providing additional support may help children and young people to engage more fully with school and promote good attendance. Schools should recognise that poor attendance can often be related to, or be an indication of, an additional support need and they should use their staged intervention processes to ensure that any barriers to learning are identified and appropriate support is provided.
My concern is that this gets lost in a document which has much more to say about the traditional means of responding to absence: work being sent home; attendance orders; references to the children’s panel; and prosecution of the parents of the absent child (five pages devoted to the “Measures for compulsory compliance” appendix!). None of which is helpful or effective in relation to a child whose autism means that they are unable to function effectively (let alone learn) in the busy environment of a large mainstream school. These systems were set up decades ago to deal with truancy and are ill-suited to other purposes. Further, once you are in the enforcement process, it is difficult to get out.
Fortunately, the Tribunals – and the Court of Session, in the 2018 Inner House case of City of Edinburgh Council v. R, may take a more considered view of this type of case. The case deals with some fairly technical matters under the Equality Act 2010, but ultimately has no difficulty with the Tribunal’s finding that a CSP for a disabled child refusing to attend school (for reasons arising from that disability) which basically says the school can do nothing until the child attends school – was inadequate, detrimental and discriminatory.
This week is Learning Disability Week 2019! This year, the theme is community. The campaign provides an opportunity to celebrate the contribution of people with learning disabilities to their communities while also raising awareness of some of the barriers they can face in doing so.
As the Scottish Commission for Learning Disability highlight:
Communities are at their best when everyone is active…connected…and feels included.
At their best communities – including learning communities – provide something for everyone to benefit from, boosting wellbeing, preventing loneliness and isolation, and improving outcomes.
Inclusion is the overarching approach adopted in schools in Scotland – with the presumption of mainstreaming central to that policy. Although this policy has many detractors if a recent study is to be believed, when it works, this inclusive ethos enables children with learning disabilities to play an active part in their school communities. The Additional support for learning: experiences of pupils and those that support them report found that most pupils with additional support needs at mainstream schools felt they had lots of friends, that it was easy to make friends, and that they were included in the life of the school.
By educating pupils who have learning disabilities and those who do not side by side, friendships and support networks can blossom between children who may not have crossed paths in previous generations.
There is still, however, work to be done. Keys to Life is Scotland’s learning disability strategy. It recognises learning as one of the strategic priorities, and highlights the following:
The rights that pupils with learning disabilities have under both the Education (Additional Support for Learning) (Scotland) Act 2004 and the Equality Act 2010 should assist in tackling some of these issues, but that does rely on an increased awareness of those rights among educators, parents and pupils.
A school is at the heart of its community, and by adopting an inclusive ethos, properly supported, they can be instrumental in building a genuinely inclusive school experience for all pupils.
Full Disclosure: I am a board member of the Scottish Commission for Learning Disability.
In this, my second blog post to mark Deaf Awareness Week 2019, I wanted to look at the rights of deaf pupils at school. What are those rights, and how does that translate into actual support for deaf pupils in reality?
A child or young person has additional support needs if they require additional support in order to benefit from school education (Section 1, Education (Additional Support for Learning) (Scotland) Act 2004). This applies to all children and young people for whose school education a Scottish education authority are responsible. So, anyone at a local authority school or nursery, or placed at an independent or grant-aided special school by their local authority.
The type of additional support which may be required will vary from one deaf pupil to another, but the education authority has a duty to make “adequate and efficient” provision for those needs, whatever they happen to be (Section 4(1)(a) of the 2004 Act). The Code of Practice, for example, makes specific reference to support from a “peripatetic teacher of the deaf” (Chapter 2, para 13).
Also of relevance is the Equality Act 2010, which imposes a reasonable adjustment duty on schools in relation to disabled pupils – including deaf pupils. This duty applies to all schools in Scotland, whether they are public schools, grant-aided schools or independent schools. Again, what constitutes a reasonable adjustment for one deaf pupil will not necessarily mean that it is appropriate for another. It all depends on the individual child or young person, their needs and their preferences.
The Technical Guidance for Schools in Scotland does have some useful and instructive examples. At para 6.40, there is an example of a deaf pupil who reads lips – in that case “a reasonable adjustment would have been to train all staff to ensure that they face the pupil when speaking to him”. At 6.48, a list of potential reasonable adjustments includes “Assistance from a sign language interpreter, lip-speaker or deaf-blind communicator”.
Whether relying on the rights found in the 2004 Act or the 2010 Act, deaf pupils and their families have access to various dispute resolution mechanisms, including mediation, independent adjudication and the Health and Education Chamber of the First-tier Tribunal for Scotland (also known as the Additional Support Needs Tribunal).
I spoke to Alasdair O’Hara, Head of Policy and Influencing at the National Deaf Children’s Society (Scotland) , in order to get an idea of the current picture of support for deaf pupils in Scotland’s schools:
Deafness isn’t a learning disability and we know that deaf children can do just as well in life as any other child, so long as they get the right support.
Deafness is a low incidence need with 87% of deaf children and young people educated within mainstream schools, meaning those professionals and teachers that support deaf pupils often require access to specialist expertise such as Teachers of the Deaf.
The latest Scottish Government data shows that deaf young people are now 30% less likely to collect Highers or Advanced Highers than their hearing classmates, with only 42% deaf young people collecting the qualifications, compared to 60% of their classmates.
The data also shows that 10% of deaf children will now leave school with no qualifications at all, and are half as likely to go to university as their hearing friends.
To work towards closing this unacceptable attainment gap, other simple improvements can be made in mainstream education settings. Good classroom acoustics, deaf pupils having access to technology and ensuring teachers are deaf aware and know how to use the technology correctly are all vital in supporting a deaf child’s learning.
This tells me that while there is a good level of inclusion for deaf pupils within mainstream schools, more could still be done to ensure that there is a level playing field, allowing them to access education on the same terms as their hearing peers. Last year, the Tribunal reported only one case which concerned a deaf pupil. Where additional support and/or reasonable adjustments required are not in place, pupils and parents alike should be made aware of their rights – and how to enforce them.
Today marks the start of Deaf Awareness Week – a week aimed at promoting the positive aspects of deafness and the benefits of social inclusion. Organised by the UK Council on Deafness, this annual campaign brings together all organisations that work in the field and highlights the wide range of support available for deaf people and their families and friends.
This year’s theme is ‘celebrating role models’ across all sectors – with a different focus each day. Today is the turn of ‘Education and Employment’, so it seemed apt that I take the opportunity to recognise those that have, and continue to, inspire and educate me.
As many of you will know my work often sees me advocating for the rights of children with additional support needs, including those who are deaf. Deaf children have the right to additional support to enable them to benefit from school education. They are also entitled to reasonable adjustments which minimize or remove disadvantages arising from their disability while at school. But these rights mean little without individuals committed to making them a reality.
I have recently had an opportunity to work alongside the staff and management at Donaldson’s School – and have heard from parents about the excellent work they do with Deaf pupils who have autism or other additional support needs as well.
I also continue to work with the tireless family support workers at NDCS Scotland, who provide a national support service to families of deaf children throughout the country. Their commitment, knowledge and dedication is much appreciated by the families I know who have benefited from their input.
And, of course, there are teachers in classrooms across Scotland, implementing small (and not so small) changes which positively impact the lives of deaf children, and those with other additional support needs.
Who are your education role models?
Our collective judgement is that the Education (Scotland) (Additional Support for Learning) Act 2004 (as amended) is sound and fit for purpose. We are proud that Scotland has such progressive legislation in place.
So said the Scottish Government’s Advisory Group on Additional Support for Learning (AGASL) in January this year. At the same time, they recognised the need for a review of its implementation in practice.
Not long after that, a motion was debated and passed by the Scottish Parliament to undertake a review of the presumption to mainstream, and how it is working in practice. It is unclear when this review will take place, or indeed how long it will take, but in a letter to John Swinney, Secretary for Education and Skills, on 9th April 2019 the Education and Skills Committee gave a clear view that mainstreaming in practice needs support. While endorsing the view of AGASL, the Committee outlined their recommendations for the review, based on research carried out over December 2018 through February and March this year. This involved a call for views, a focus group with parents, young people, school staff and others and meetings with other relevant stakeholders, with the Committee aiming to see how the experiences and perspectives of these groups had evolved since the publication of “How is Additional Support for Learning working in practice?” in 2017.
Disappointingly, the Committee found the issues raised by parents and teachers who submitted to the last inquiry remain relevant today. The Committee called for the 2017 recommendations to be considered in any future review and were conscious that: “the policy to include is having the opposite effect in some circumstances due to a lack of resources”. The issues raised for consideration by the Minister will not be news to regular readers, and included:
There was also a suggestion that the definition of what constitutes additional support need has become so broad that its impact has been diluted. This may be contributing to an inconsistency in provision. For instance, children who have English as an Additional Language are included within the definition. While there was no recommendation associated with this, the Scottish Government were asked to provide their perspective.
The Committee has asked John Swinney to respond to their proposals by 15th May 2019, and I await that response with interest.
Photo Credit: DFM gets to work on education, Scottish Government – released under a Creative Commons Attribution-NonCommercial 2.0 Generic (CC BY-NC 2.0) licence