Reasonable adjustments for schools in a time of pandemic

Schools have had a duty to make reasonable adjustments for disabled pupils since amendments to the Disability Discrimination Act 1995 came into force in 2001.  These duties were later expanded to include “auxiliary aids and services”.  The phrase “reasonable adjustments” is fairly well known by now, but prompts the question – “what is reasonable?” and specifically, what might be regarded as reasonable in the particular circumstances of a global pandemic crisis.

Overview of the legal framework

Part 6, Chapter 1 of the Equality Act 2010 is the part of the Act which applies to schools.  It applies to all schools in Scotland, i.e. public schools (those managed by a local authority); independent schools; and grant-aided schools (those receiving specific direct Scottish Government funding).

The legal duties rest with the responsible body for the school.  In the case of public schools, this is the local authority as a whole – an important point when the discussion turns to funding and resources.  For independent or grant-aided schools, the managing body (e.g. a board of trustees or SCIO) is the responsible body.

The Equality Act 2010 applies across all nine “protected characteristics”, but there are two types of discrimination which only apply in relation to disability.  These are the reasonable adjustments duty (Section 20) and discrimination arising from disability (Section 15).

Reasonable adjustments

In the case of disabled pupils and schools, it is only the first and third requirements of the reasonable adjustments duty which applies.

The first requirement arises where a “provision, criterion or practice” (PCP) places a disabled person at a substantial disadvantage.  The requirement is to take reasonable steps to avoid that disadvantage.  The EHRC’s Technical Guidance for Schools in Scotland gives the example of a school policy forbidding the use of external USB devices with school computers.  In the example the school amends the policy so that a disabled pupil can be given a login that will allow him to attach an adapted keyboard in class. (para 6.9)

The third requirement arises where, without an “auxiliary aid or service,” a disabled person would be at a substantial disadvantage.  The requirement is to take reasonable steps to provide the auxiliary aid or service in question.  The Technical Guidance gives the example of a school providing a coloured plastic overlay sheet for a pupil with dyslexia.

The second requirement concerns substantial disadvantage which may arise because of a physical feature.  The schools duties do not include a requirement to remove or alter physical features of the school for disabled pupils.  However, there is a planning duty contained in the Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002 which requires responsible bodies for schools to set out their plans to improve access (including physical access) to the school, on a three year cycle.

Discrimination arising from disability

This type of discrimination occurs where a disabled pupil has been treated unfavourably, because of something “arising in consequence of” pupil’s disability unless that treatment is a “proportionate means of achieving a legitimate aim”.

Unfavourable treatment is a fairly broad category and (unlike other types of discrimination) does not require a direct comparison.  That is, there is no need to find someone who has been treated more favourably than the disabled pupil.

Recent cases at the Tribunal have dealt with exclusion from school, the use of physical restraint and a refusal to allow an additional year at school as unfavourable treatment.

In cases where the unfavourable treatment is admitted or established, the responsible body may argue that the treatment was not unlawful as it was a proportionate means of achieving a legitimate goal.  Often the aim pursued is self-evidently legitimate, and the question is then whether the treatment in question was a proportionate means of pursuing that goal.

The Technical Guidance gives an example (at para 5.47) of a pupil excluded from school meals because she found queueing distressing.  There may be a legitimate goal in this case, but if there are less restrictive means of achieving that goal (e.g. could the pupil be allowed to go straight to the head of the queue?) then the responsible body will struggle to show that the treatment is justified.

Overlap with additional support needs framework

The Equality Act 2010 is not the only piece of legislation which may apply, as disabled pupils may also have “additional support needs” in terms of Section 1 of the Education (Additional Support for Learning) (Scotland) Act 2004.  There are several areas in which there is an overlap between these two legal frameworks.

It is worth noting, for example, that neither the definition of additional support needs, nor the definition of disability require a formal diagnosis.  Both Acts are more focused on the day to day experience of the individual pupil.  Indeed, the definition of additional support needs specifically includes pupils who require additional support “for whatever reason”.

The First-tier Tribunal for Scotland’s Health and Education Chamber has jurisdiction for both types of case, and can join cases together where this is appropriate.  For example, in a case involving support for a disabled pupil to access an after school guitar club, the Tribunal considered the matter as a failure to comply with the child’s CSP and a reasonable adjustments case at the same time (cf. “Landmark victory for disabled pupil”, Daily Record 19 June 2013)

Issues arising during the Covid-19 pandemic

Questions of reasonable adjustments and disability discrimination arise in school even when there is no global pandemic to complicate matters.  However, there have been some specific issues arising which relate directly to the Covid-19 pandemic and the measures taken in response.

  • Some auxiliary services which required close contact with staff were restricted or ceased altogether (e.g. personal care needs, communication support needs).
  • Some auxiliary aids / assistive equipment which required handling (and therefore cleaning) were removed, or were available only on a restricted basis.
  • There was not consistent application of guidance on which children with additional support needs or disabilities could have access to learning hubs during periods of school closure. Disagreements arose as to who was regarded as “vulnerable”.
  • Some pupils required reasonable adjustments in order to access online learning.
  • Legal authority for the closure of schools – Educational Continuity Directions – was not in place at first.  The directions disapplied some of the ASL legislation, but only in a limited fashion.
  • There are ongoing issues relating to pupils who have missed education / transition planning, and reasonable adjustments may be required for disabled pupils.
  • Some disabled pupils found that access to online learning suited them well, and the return to in person lessons has been difficult, or impossible.  Reasonable adjustments may be required in terms of delivery of the curriculum in new and innovative ways.

Recent Tribunal cases

During the pandemic the Tribunal, after a short period in which only urgent cases were progressed, has adapted quickly and well to online hearings and electronic case papers.  There is no current backlog and cases (including disability discrimination cases) continue to be heard and determined.

Over the last academic year (2020-21) the Tribunal has considered disability discrimination cases which have covered a wide range of topics including: differentiation of the curriculum, subject choices in the senior secondary stages, exclusion from school, requests for additional time at school, specific strategies for addressing dyslexia, and the use of physical restraint. Few (if any) were directly related to the pandemic, but that is the context in which they took place.  To the extent that it was considered, it is reassuring to note one Tribunal’s comments in relation to transition planning:

“the COVID-19 pandemic does not remove the obligations of the responsible body to comply with the transition regulations.”

Image by Hatice EROL from Pixabay

Pride and Prejudice

As Pride month for 2021 draws to a close, I thought it would be appropriate to write a brief article outlining what the law says about discrimination and LGBTQ pupils.

LGBTQ young people with additional support needs or a disability can face particular issues not experienced by straight / cisgender disabled people, or by non-disabled LGBTQ pupils. As the Scottish Commission for People with Learning Disabilities 2018 report “Safe and Healthy Relationships” points out: “people with learning disabilities who identify as LGBT [are] a “minority within a minority” (Elderton et al, 2013, p.302). This subgroup experience a double disadvantage which can increase the barriers in forming relationships which are safe, healthy and reciprocal.”

Protected Characteristics

The Equality Act 2010 provides protection from unlawful discrimination across nine “protected characteristics”. These include sexual orientation (section 12) and gender reassignment (section 7).

Sexual orientation is defined as “a person’s sexual orientation towards— (a) persons of the same sex, (b) persons of the opposite sex, or (c) persons of either sex.”

Gender reassignment is defined as being when “a person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” A recent case in the Employment Tribunal (Taylor v. Jaguar Land Rover) has clarified that the reassignment need not be viewed strictly as male to female or female to male – and thus pupils identifying as gender-fluid or non-binary would also be protected.

A person will be protected because of gender reassignment once:
• he or she makes his or her intention known to someone, regardless of who this is (whether it is someone at school or at home, or someone such as a doctor);
• he or she has proposed to undergo gender reassignment, even if he or she takes no further steps or decides to stop later on;
• there is manifestation of an intention to undergo gender reassignment, even if he or she has not reached an irrevocable decision;
• he or she starts or continues to dress, behave or live (full-time or part-time) according to the gender with which he or she identifies as a person;
• he or she undergoes treatment related to gender reassignment, such as surgery or hormone therapy; or
• he or she has received gender recognition under the Gender Recognition Act 2004.
It does not matter which of these applies to a person for him or her to be protected because of the characteristic of gender reassignment.

Technical Guidance 5.114

Schools

Part 6, Chapter 1 of the Equality Act 2010 covers all schools in Scotland (education authority, granted-aided or independent) and provides that the responsible body for a school must not discriminate against a pupil (or prospective pupil) in terms of admission to school; provision (or failure to provide) education or other “benefit, facility or service”; or by excluding a pupil or subjecting them to any other detriment. This would cover direct or indirect discrimination cases.

However, the prohibition on harassment (s.26(3)) does not apply in relation to the protected characteristics of sexual orientation or gender reassignment (s.26(10)). In practice, most incidents of harassment would be caught by the direct discrimination provisions in any event.

Example: As part of health and wellbeing education, a teacher describes homosexuality as ‘unnatural’ and states that he will be covering only straight relationships in the lesson. A bisexual pupil in the class is upset and offended by these comments. This may be direct discrimination on the grounds of sexual orientation.

Technical Guidance 5.19

Schedule 23, para 3 of the Act provides a general exception in relation to communal accommodation (which covers residential schools’ accommodation). Matters in relation to communal accommodation will not be unlawful in relation to sex discrimination or gender reassignment discrimination. In relation to gender reassignment, consideration must be given to whether the decision in question is “a proportionate means of achieving a legitimate aim”.

Consequences

Unlike disability discrimination cases, there is no specialist Tribunal with jurisdiction in relation to schools cases involving sexual orientation discrimination or gender reassignment discrimination. These cases are instead heard by the Sheriff Court (Section 114(1)(c)). To my knowledge, there is no case law involving cases of this type. It is hard to tell whether this is a good thing (because there are few examples of discrimination against LGBTQ pupils by schools) or a bad thing (because a lack of awareness or other factors mean people do not want to bring cases when they arise). It may be a bit of both.

There is a six month deadline for bringing cases to court (s.118), and the Sheriff should ordinarily appoint a specialist “assessor” to assist in considering the case (s.114(8)). The Sheriff Court has wide ranging powers to make a range of court orders where discrimination has taken place, including compensation for injury to feelings (s.119)- awarded on the so-called Vento scale.

Examples

In the absence of case law in education cases, we have to look to cases in other fields (usually employment) and to the Equality and Human Rights Commission’s Technical Guidance for Schools in Scotland. Although some of the examples are of fairly obvious cases of discrimination, it is helpful to consider what the guidance says nonetheless.

Example: An independent religious school has information on its website indicating that it does not tolerate homosexuality. This could constitute direct sexual orientation discrimination

Technical Guidance 2.17

Example: A school has a policy covering racial bullying and any pupil who participates in racial bullying is excluded for at least one day. However, the school does not have a policy dealing with homophobic bullying and pupils who participate in such bullying are usually given only a detention. This could lead to direct sexual orientation discrimination unless the bullying of homosexual pupils was not related to their sexual orientation.

Technical Guidance 3.7

Example: A lesbian pupil undertakes a project charting the history of the gay and lesbian movement as part of her coursework. Her teacher tells her that her topic is inappropriate and that she should keep her personal life to herself. As a result, the pupil is subsequently given low marks for her project. This is likely to be direct discrimination because
of sexual orientation.

Technical Guidance 3.8

Example: A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private
changing facilities, such as the staff changing room or another suitable space.

Technical Guidance 3.20

A previously female pupil has started to live as a boy and has adopted a male name. Does the school have to use this name and refer to the pupil as a boy?
Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination. Not referring to this pupil as a boy would also result in direct gender
reassignment discrimination.

Technical Guidance 3.36

Example: A member of school staff repeatedly tells a transsexual pupil that ‘he’ should not dress like a girl and that ‘he’ looks silly, which causes the pupil great distress. This would not be covered by the harassment provisions, because it is related to gender reassignment, but could constitute direct discrimination on the grounds of gender reassignment.

Technical Guidance 5.19

For further reading, you might want to take a look at Education Scotland’s resource on Addressing Inclusion – Effectively Challenging Homophobia, Biphobia and Transphobia.

Image by Sharon McCutcheon from Pixabay

Potential Energy (Part 7)

Following on from the importance placed on relationships and trust as key values and attributes of staff working with children and young people with additional support needs under Theme 5; we now turn to Theme 6: Relationships between Schools and Parents and Carers.

The review begins by affirming the importance of effective working relationships. Where there are “honest and trusting relationships .. characterised by mutual listening and respect” this allows for “sharing views and airing disagreement without conflict.”

Continue reading “Potential Energy (Part 7)”

Potential Energy (Part 1)

As promised, and following a delay (for which I apologise), I finally turn my attention to the independent review of the implementation of Additional Support for Learning legislation in Scotland.  The review was chaired by Angela Morgan, and the report, titled “Support for Learning: All our Children and All their Potential” was published in June 2020. A formal response from Scottish Government and COSLA is expected in the Autumn.

There has not been much in the way of commentary on the review, with this interesting article by Alison Brown being a rare example.

I plan to take the same approach as I did with the mainstreaming guidance, which is to consider the report in shorter chunks.  This keeps things manageable for me, and allows for a more in-depth analysis of each section. As always, my focus is on the legal implications.

Continue reading “Potential Energy (Part 1)”

Mainstreaming, I presume? (Part 10 – Conclusions)

So, we have finally reached the end of the Scottish Government’s guidance on the presumption of mainstreaming.  Having gone through it in that level of detail, I have obviously had the opportunity to form a view on it.

Reading through the previous nine articles, you will see that I have some criticisms and some concerns in relation to individual sections.  However, overall, I would say that this guidance is pretty good.

It is well written and well structured.  It provides a useful working definition of inclusive education, through its use of the “four key features of inclusion”.  It is a practical document, which you can actually see education staff, parents and young people making use of in tackling the issues which arise.  The practitioner questions, in particular, are a really useful approach and identify the right questions without dictating an answer in any individual case.  It also valiantly attempts to move the terminology on from “mainstreaming” to “inclusive education / inclusion” while hampered with legislation which bears the crossheading “Requirement for mainstream education”.

So, as I was asked on the facebook page recently …

What’s your stance on presumption of mainstreaming?

A good question.

One of the points to consider here is how well the Scottish legislation (Section 15 of the Standards in Scotland’s Schools etc. Act 2000) implements Scotland’s international obligations (Article 24 of the UN Convention on the Rights of Persons with Disabilities).

But Section 15 was never an attempt to implement the UNCRPD.  Scotland’s presumption of mainstreaming law (passed by the Scottish Parliament in 2000) predates the UN Convention (came into force on 3 May 2008) by several years.

At that time, as far as I know, the leading international source for inclusive education was the UNESCO Salamanca Statement (from June 1994), with its call for children with special educational needs to have access to “regular schools” with an inclusive orientation”.

It is a measure of the speed at which progress was made that less than 15 years later, there was a UN Convention requiring all States Parties (including the UK) to ensure that “[p]ersons 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;”  And it is therefore perhaps not surprising that legislation which predates that Convention does not fully reflect its requirements.  Time for a legislative review?

One of the big problems which exists here is with the terminology.  A “presumption of mainstreaming” – is almost tailor made to get parents’ backs up.  Why are you taking important decisions about my child on the basis of a presumption?  Look at them as an individual and make a decision that is best for them!

And look at how it is structured.  A duty on the education authority to ensure that children (subject to the three exceptional exceptions) are provided with school education in schools which are not special schools.  The assumption was that the presumption of mainstreaming was something which parents could use to ensure access to “regular schools”.  Too often, it is something which is imposed on parents against their better wishes.  This is compounded where the provision then does not deliver on reassurances made by education personnel (who may not work within the school in question).

What if the legislative language was not about taking children and deciding where to put them – like some kind of low-grade Sorting Hat?  What if, instead of a duty to place children in mainstream schools, the education authority had a duty to make its mainstream schools inclusive for all pupils?  What if, instead of a duty to put children in local schools, there was a duty to make local schools accessible, inclusive and welcoming for children with disabilities or additional support needs?

The Equality Act 2010 and the (oft-forgotten) accessibility strategies go some way to achieving this – but not far enough.  Just this year, I represented a family who could not send their child to the local school for want of an accessible toilet, which the authority refused to install for cost reasons.  Besides, there was an accessible school not too far away and we will pay for a taxi for you.  This is – as the law stands – perfectly legal.

It is not my role to make suggestions about how we could improve things, but if it were, I might suggest the following:

  1. Review and revise the legislation so that it better reflects Scotland’s obligations under the UN Convention on the Rights of Persons with Disabilities.
  2. Strengthen the Accessibility Strategies process so that schools and authorities take it seriously, and they are externally audited (as they used to be).
  3. Schools should give parents at least an indication of the supports available for their child in advance of attendance.  Being told that the child will attend, and then the school will determine the level of support required is not at all reassuring.
  4. If a child is to attend a mainstream school, the right support and financial backing must be given to allow their full participation in all aspects of the school – after school clubs, school trips etc.
  5. Children and young people should be at the centre of and involved in decisions about their own education.
  6. A diversity of provision – including smaller, quieter schools – would be of benefit to a diverse range of learners.  Those with additional support needs and those without.

Thanks for sticking with me over the course of this ten part series, and for those who have provided useful comments and feedback.

Case summary – AD v. London Borough of Hackney (Court of Appeal)

The case of AD v. London Borough of Hackney [2020] EWCA Civ 518 was recently heard by the culinary trio of Lords Justice Bean and Baker, and Mr Justice Cobb at the Court of Appeal.  It is the latest in a series of unsuccessful legal challenges to local authority budget cuts affecting (or potentially affecting) special educational needs provision in England and Wales.

Continue reading “Case summary – AD v. London Borough of Hackney (Court of Appeal)”

Mainstreaming, I presume? (Part 8)

The Scottish Government guidance we have been looking at is called “Guidance on the presumption to provide education in a mainstream setting“, and yet it is only now – on page 13 of the document – that we reach consideration of the sometimes thorny issue of deciding on the right provision for a child or young person.

Continue reading “Mainstreaming, I presume? (Part 8)”

Proposed Disabled Children and Young People (Transitions) (Scotland) Bill – consultation response

Johann Lamont MSP recently launched a consultation on a proposed private member’s Bill in the Scottish Parliament.  The consultation period for the Disabled Children and Young People (Transitions) (Scotland) Bill ended today (22 January 2020).

The proposals for the Bill were developed with the assistance of Camphill Scotland and Inclusion Scotland.  As the consultation document points out:

At age 16, the aspirations of disabled and non-disabled young people are broadly the same. By 26, however, disabled people are more likely to be out of work than their non-disabled peers, and are three times more likely to feel hopeless and to agree that “Whatever I do has no real effect on what happens to me”.

The Bill, as set out covers three main big ideas:

  1. A National Transitions Strategy;
  2. A Scottish Government Minister with special responsibility for transitions; and
  3. Transitions plans for every child and young person with a disability.

In principle, the Bill addresses some big issues, but I do think the details and structure proposed need some work.

My full consultation response can be found below.

Continue reading “Proposed Disabled Children and Young People (Transitions) (Scotland) Bill – consultation response”

Presidential powers to refer to Scottish Ministers used for the first time

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.