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)”
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.
Having finished describing the four key features of inclusion (present, participating, achieving and supported), the Scottish Government guidance on the presumption of mainstreaming, then moves on to consider the question of inclusive practice.
In this, the sixth part of a series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the fourth and final of the “Key features of inclusion” : Supported.
In this, the fifth part of a series on the Scottish Government (2019) Guidance on the presumption to provide education in a mainstream setting, we will be looking at the third of the “Key features of inclusion” : Achieving.
The latest newsletter is now available to download. Do please read it, share it and subscribe using MailChimp for future editions.
This edition looks back at the significant legal and policy developments in 2019, and forward to the extension of early learning and childcare provision.
The support spotlight this edition is on an innovative work placement project from The Salvesen Mindroom Centre.
Do let me know what you think about the newsletter in the comments.
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:
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.
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.
The Additional Support Needs Blog 