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)”

Case summary – Drexler v. Leicestershire County Council (Court of Appeal)

This case was an appeal to the Court of Appeal against a decision of the High Court, rejecting a human rights challenge brought against a change in the SEN transport to school policy of the local authority.  The case was Drexler v. Leicestershire County Council [2020] EWCA Civ 502 and while the appeal was unsuccessful and concerning provisions in English law, it has some useful and interesting points for us to consider.

Continue reading “Case summary – Drexler v. Leicestershire County Council (Court of Appeal)”

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.

Mainstreaming, I presume … (Part 2)

In the first part of this series (Mainstreaming, I presume … (Part 1)) I looked at the legislative basis for the presumption of mainstreaming.  In this next part, we will be looking at the question of inclusion.

The term “inclusion” is not used in the Standards in Scotland’s Schools etc. Act 2000, or in the Education (Additional Support for Learning) (Scotland) Act 2004.  In fairness, it is a difficult concept to define in statutory terms.  However, the explanatory notes to the 2000 Act, talk about the presumption of mainstreaming in these terms: “This section aims to establish what is effectively a presumption in favour of ‘mainstream education’ for all children in Scotland. It will strengthen the rights of children with special educational needs to be included alongside their peers in mainstream schools.”  So, a right to inclusion has always been the intention of the legislation.

From an international perspective, it is Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which best outlines the position, with its requirement on signatories (including the UK) to “ensure an inclusive education system at all levels”.

It goes on to require:

a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability;

b) Persons 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;

c) Reasonable accommodation of the individual’s requirements is provided;

d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education;

e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.

Article 24(2), UNCRPD

The UNCRPD is not currently incorporated into UK or Scots law in the same way that the European Convention on Human Rights is, or the UN Convention on the Rights of the Child will be (under current proposals).  However, it remains an international obligation (albeit one which the UK Government have accepted with two fairly substantial reservations – see ALLFIE on Article 24).  Governments, including the Scottish Government, are required to have regard to the Convention in making law and policy and to take steps to ensure its effective implementation.  The Convention can also be referred to by individuals taking legal action, as an aid to the interpretation of existing law (as it is presumed that neither Westminster nor Holyrood Parliaments would legislate in a way which is incompatible with its international obligations).

“A Fairer Scotland for Disabled People” is the Scottish Government’s delivery plan for the UNCRPD to 2021.  However, this does not make specific mention of the right to inclusive education, or of Article 24, or of the presumption of mainstreaming.  It does make mention of “Disabled people are visible and participating within communities, learning and education, volunteering and employment.” and “Equal opportunities for disabled people in education and employment.” – which captures some of it, I suppose.

The Ministerial Foreword to the guidance, however, could hardly be clearer in its intentions re: inclusion, with the Cabinet Secretary for Education spelling out the benefits of inclusion: “affords all children and young people the opportunity to be a part of a community, boosting their emotional wellbeing and aiding the development of social skills.” as well as being clear on the limitations of the presumption of mainstreaming: “Being present in a mainstream school should not be the primary marker of successful inclusion.”  There is also, a very welcome (and child-centred) acknowledgement of the importance of how inclusion is experienced by the individual pupil.

The introduction to the guidance then gets to grips with what is meant by “inclusion”.  This is helpful, actually.  The “Scottish vision for inclusive education” is pretty vague as you might expect – but usefully links an inclusive approach to the achievement of equity and excellence (the tiresome two watchwords of modern education policy in Scotland).

What is more helpful, in my view, is the identification of four key features of inclusion:

  • Present
  • Participating
  • Achieving
  • Supported

The guidance goes on to consider each of these features in turn, as will I …

Edited (18 November, 2019) following helpful input from A24 Scotland.

Image by Michal Jarmoluk from Pixabay

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.

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 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.

 

Included, Engaged and Involved Part 1

New Attendance Guidance – is it any good?

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.

 

Learning Disability Week 2019

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:

  • Teachers have a pivotal role in securing positive experiences for people with learning disabilities.
  • Many teachers don’t have the skills and resources they need to support pupils with learning disabilities.
  • Testing and attainment structures do not reflect the potential of children with learning disabilities and how they can succeed.
  • Transition periods are particularly challenging for people with learning disabilities.
  • There are a lack of appropriate choices for people with learning disabilities at school and college.

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.

Deaf Awareness Week 6-13 May 2019, Celebrating Role Models

The rights of deaf pupils in Scotland’s schools

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.

Deaf Awareness Week 6-13 May 2019, Celebrating Role Models

Deaf Awareness Week 2019

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?