Ashdown House School case (a summary)

I bring news of an interesting disability discrimination case involving an independent school in England.  The case was determined by the Upper Tribunal, which is basically the appeal route as exists in Scotland from the Health and Education Chamber (previously known as the Additional Support Needs Tribunals).

The case is that of Ashdown House School v. JKL & MNP (not their real names!) and involved a pupil who was referred to for the purposes of the case as “Bobby”.

The facts of the case

Bobby was ten years old and a pupil at Ashdown House School, who has ADHD, sensory processing difficulties and emotional and social difficulties arising from trauma in his early childhood and in the womb.  He is a disabled person in terms of Section 6 of the Equality Act 2010.

He was permanently excluded from the School on 9 February 2019.  He was excluded for aggressive behaviour, including placing another pupil in a headlock and what the school describes as “37 incidents of unprovoked aggression”.  The school admitted that the exclusion amounted to unfavourable treatment, but maintained that the exclusion was a proportionate means of achieving a legitimate aim.  The aim in this case was to ensure the health and safety of staff and pupils at the school.  For their part, the parents accepted that this was a legitimate aim, but not that the school had acted proportionately.

The Tribunal (at first instance) found that the exclusion was not proportionate, and was therefore unlawful discrimination.  This was for a number of reasons.  The Tribunal found that while the school had made a number of reasonable adjustments, there were other reasonable adjustments which could have been made (including anger management sessions, consulting with the local authority, and allowing parents to seek a review of Bobby’s Education, Health and Care Plan (EHCP), or seeking advice from CAMHS regarding his medication).  The Tribunal also found that the exclusion came “like a bolt out of the blue” in that neither pupil nor parents had been warned it was a possible consequence of the incidents.  There was also evidence that other violent incidents within the school (involving other, non-disabled pupils) had been dealt with less severely.

The Tribunal ordered Bobby’s immediate readmission, and that the school formally apologise to Bobby.

The school appealed to the Upper Tribunal.

Legal questions arising on appeal

In considering the appeal, the Upper Tribunal had to consider four discrete points:

  1. Does the First-tier Tribunal (SENDIST) have the power to order reinstatement of an excluded pupil to school?
  2. How can decisions of the First-tier Tribunal (SENDIST) be enforced, if not by the Tribunal itself?
  3. In the light of the courts’ traditional reluctance to order specific performance of contracts involving personal service/contact or supervision, is an order to reinstate a pupil at an independent school (in terms of a contract between the parents and the school) appropriate?
  4. Is it appropriate to order an apology in special educational needs and disability (SEND) cases?

The Upper Tribunal’s decision

The Upper Tribunal dismissed the appeal, and Bobby was – ultimately – allowed to return to school.  I understand that he also received his apology.

The school argued, that in the case of an independent school, the Tribunal would be restricted to making a declaration of discrimination, and making recommendations for the school to consider.  The Upper Tribunal rejected this argument. The wording of the Act permits Tribunal to make such order as it thinks fit (excluding an order for payment of compensation).  This wording obviously includes a power to order reinstatement.

At some considerable length, the Upper Tribunal considers how one of its decisions might be enforced, if not complied with.

Although the Tribunal itself does not have the power to enforce its own decisions in that regard, one of the parties to the action can rely on the inherent power of the High Court to commit for contempt of court in the event of non-compliance with the order or the [Equality and Human Rights Commission] may itself take proceeding under s.24 of the 2006 Act to achieve the same end. The School, however, is not amenable to judicial review because it is not a public body and in expelling the pupil it was not exercising public law functions.

Of course, in Scotland, the President of the Health and Education Chamber has specific powers to monitor the implementation of Tribunal decisions.  In the event that such decisions are not implemented, a referral to the Scottish Ministers (who have enforcement powers and mechanisms in relation to both public and independent schools) may be made.

The Upper Tribunal determined that while the Tribunals should have regard to the historic reluctance of the courts to impose specific performance of a contract which involves personal service and supervision, and the reasons for that reluctance, this did not preclude the Tribunal from making such an order in appropriate circumstances.

The Upper Tribunal suggested that it would be “sensible for a Tribunal considering a disability discrimination claim in the future to consider matters such as whether it is practicable to make an order for reinstatement and, in cases where the applicant has caused or contributed to the expulsion, whether it would be just to order reinstatement.”

In finding that an order for an apology was appropriate in these circumstances, the Upper Tribunal set out the following guidance for future cases (likely to be relevant in Scottish cases, too) repeated largely verbatim below:

  • The Tribunal does have the power to make an order for an apology.
  • An apology may have a wider purpose than merely preventing further discrimination against the child in question. To the extent that an apology is an assurance as to future conduct, an order that there be an apology gives teeth to a declaration of unlawful discrimination.
  • There can be value in an apology: apologies are very important to many people and may provide solace for the emotional or psychological harm caused by unlawful conduct. An apology might reduce the mental distress, hurt and indignity associated with a permanent exclusion. It might also assist with recovery, forgiveness and reconciliation. An order that there be an apology can be regarded as part of the vindication of the claimant.
  • A tribunal should consider whether the apology should more appropriately be made to the child or to their parents. In the case of very young children the latter may be more appropriate for obvious reasons.
  • An order to make an apology may well be appropriate when there is already an acceptance that there has been discrimination or unlawful conduct.
  • However, the fact that there has been a contested hearing and that the respondent has strenuously disputed that there has been any discrimination or unlawful conduct is not decisive against ordering an apology.
  • Nevertheless, particularly where there has been a dispute or a contested hearing, the tribunal should always consider whether it is appropriate to make an order and bear in mind that it may create resentment on one side and an illusion on the other, do nothing for future relations and may make them even worse.
  • Before ordering an apology, a tribunal should always satisfy itself that it will be of some true value.
  • A tribunal should always be aware that there may be problems of supervision if it accepts responsibility for overseeing the terms of the apology which can result in drawn out arguments over wording.

Conclusion

The decision of the Upper Tribunal in this case is likely to be of interest and use in a number of Scottish cases, especially those involving questions of admission and exclusion to an independent school.  However, the points of guidance on the question of an apology are of broader application and I anticipate will be widely cited within the Health and Education Chamber.

 

Advertisements
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?

Stop School Budget Cuts

Education budgets, consultation and the public sector equality duty

I came across this article in TES recently which reported that a group of parents in Surrey had been unsuccessful in their challenge to cuts made to the Special Educational Needs (SEN) budget of their local authority. The challenge was brought by the parents of 5 children who claimed that the SEN budget for 2018-2019 cut spending by £21 million and was unlawful due to a lack of consultation.  This type of challenge – by way of Judicial Review –is not an isolated one, although it is much less common north of the border. And, despite the outcome in this case, can be successful.

Indeed, the case of KE & Ors, R (On the application of) v Bristol City Council [2018] EWHC 2103 (Admin) – raised earlier in 2018 – was successful in quashing the budget decision and sending it back to the Council for reconsideration. The focus of the case was slightly narrower – the parents challenged the Council’s decision to set a school’s budget as it included a reduction in expenditure of £5 million pounds in the “high needs” block budget. This is the budget used for special needs provision.
The grounds for review in that case were multiple, but of particular interest is the challenge made with reference to the Equality Act 2010. More specifically, that the decision breached the public sector equality duty (PSED) which contains a duty to acquire further information – including through consultation.

For its part, the Council argued that the Judicial Review was premature as no decision had been taken on provision proposals which were to be developed within the funding envelope.  The Judge, however, held that the decision was indeed one that could be challenged. The cut was to funding in a very specific area within the Local Authority’s education budget. It was sufficiently focused even at this stage.

Having concluded that the challenge was a relevant one he went on to hold that there had been a failure to consult in terms of the PSED. Further, the Court noted that ‘participation in public life embraces participation in a mainstream educational environment and such participation for children with disabilities is disproportionately low’. Factors such as levels of exclusions and the high numbers of children in special schools were factors that cried out for consideration by the Local Authority and had not been.

Surrey County Council used the same defence as put forward by Bristol City Council. The parents were, however, challenging proposed cuts made across the authority and not to a particular school – or provision. In rejecting their claim, Lady Justice Sharp said that the evidence in the case showed that the decision being challenged was not, in fact, a ‘cut’ to the budget. Rather the authority had identified a potential for future savings: “The Council could not know what the impact of the cuts might be in those areas, or consult on them, because at the time the decision under challenge was taken, no cuts have been decided upon or worked out.”

With the Public Sector Equality Duty applying to local authorities in Scotland too, local government across the UK should take note. These cases confirm that the PSED applies to budget decisions and embraces participation in a mainstream environment.

Information gathering and consultation during the budget setting process goes some way to assist that and is a requirement on decision-makers to ensure that mainstreaming is happening. The Bristol case makes mention of statistics relating to the high numbers of children in special schools in the local authority area, and the numbers of exclusions. A properly conducted Equality Impact Assessment may also be of relevance.

By actively considering how successfully inclusion is working within a local authority area, and what needs to be done if it is not, budget decisions will better reflect and focus on children with additional support needs and disabilities. It may be some time before we see similar cases in Scotland (and funding of such cases is always a thorny issue) but the reminder of the application of the public sector equality duty to changes in the additional support or education budget is certainly timely.

Photo Credit: John Stavely at https://www.flickr.com/photos/8759111@N02/3320291932

Creative Commons license: https://creativecommons.org/licenses/by-sa/2.0/

Changing places consultation

Accessible toilets or “disabled toilets” do not necessarily meet the needs of all people with a disability.

People with profound and multiple learning disabilities, as well people with other physical disabilities such as spinal injuries, muscular dystrophy and multiple sclerosis may need the additional equipment and space afforded by a Changing Places toilet in order to be able to use the toilets safely and comfortably.  This post from the Quinns, Trains and Cerebral Palsy blog explains things much better than I can.  And this one…

It can, however, be difficult to find a Changing Places toilet.  A growing campaign, led by the Changing Places Consortium is calling for  for Changing Places toilets to be installed in all large public places.

The Scottish Government has just launched a consultation on building standards for changing places.  The proposal is

The proposal is to require Changing Places, through building standards, in certain types of larger new buildings.  Such regulations would go some way to increase the provision nationally, albeit over a period of time.

It is a welcome step, and the detail of the regulation will be important.  For example, the consultation at present only includes secondary schools, and only where community facilities are also provided by that school.  This is a missed opportunity, and consideration should be given to widening the requirement to include all secondary schools, special schools and primary schools (perhaps subject to a minimum size).

While this is not an educational piece of legislation, schools are already exempt from the second requirement of the reasonable adjustments duty under the Equality Act 2010, which might otherwise have required such changes in existing buildings, depending on the various factors which might be at play (including cost).  Most education authorities’ Accessibility Strategies are not so ambitious as to include major works on things like Changing Places toilets.  And, of course, many new build schools have opened in recent years, pre-dating these regulations.

The presumption of mainstreaming and inclusion for all pupils requires that all pupils can access safe and suitable toilet facilities at school.

The consultation runs until 13 May 2019.  Please read it, and respond – and encourage others to do so as well.

 

 

Too many children with autism are let down by schools and end up in prison

By Chrissie Rogers, Professor of Sociology, University of Bradford

 

For many young people, school can be a difficult place. And for some, it can be just about impossible. Negative experiences in school can have harmful long-term effects on pupils with autism spectrum conditions.

Official figures show that children, are increasingly being suspended or expelled from school because of “behavioural problems” – many of which include children on the autism spectrum. Some regions in the UK have experienced a 100% increase in these types of exclusions since 2011.

So despite policy rhetoric on “inclusive education” – where children ought to be educated in mainstream schools – recent figures show school exclusions are increasing: from 6,685 pupils to 7,720 between 2015-2016 and 2016-2017.

In my current research I interviewed mothers of adult children with autism and other social, emotional and mental health problems. They told me how their young sons had been a challenge in school. And how despite their requests for help, their sons received little support and ended up in the criminal justice system.

Estimates suggest that 30% of prisoners have a learning difficulty or disability and 60% have problems with communication – though this is arguably a conservative estimate, as many inmates choose to hide their disabling condition.

No help or support

Mothers in my research talked to me about how their sons were “different”. They were violent to other children and teachers as well as their own families.

All the mothers told me they felt something was “not quite right” with their child. And because the support was not forthcoming at school, this negative behaviour escalated and then as these boys got older, they ended up in prison.

One mum, Sorcha, told me her son “was made out to be the demon child of the school. He had his first exclusion in September 2004, so he was about 10 then”. Another mum, Elaine, spoke of her son Harry: “He was a difficult child for school, he’s disruptive [and] was getting into so much trouble.”

Many schools are failing to meet the needs of autistic children.
Shutterstock

Udele, explained how she had received a call from the headmistress, to fetch her son after he assaulted a teacher. “I went, you’d better call the police then. He was 10”.

Failed by the system

But a lack of support was not just isolated to the families. One senior teacher who works in a “special school” explained how hard it is to help. She said that the combination of puberty and autism can make things very difficult:

At the age of 14 there’s so much going on for them. One boy got bad grades and didn’t know what to do. He got involved with another pupil who had been excluded and was waving a knife – he got arrested.

The mothers also spoke to me about their experiences of the criminal justice system. Trudy explained how, when her son was on remand, she “felt squeezed from both sides”. She said:

My instincts were telling me that my son was getting worse and that we needed help and the professionals were telling me he was fine.

Another mother, Elaine, told me how she was “totally broken”:

I just feel like I’m standing on the edge of the cliff and I don’t know if I’m going to fall. It’s scary.

The mothers in my research all spoke of the overwhelming challenges of dealing with their child’s disability while moving through the bureaucracy and barriers if the school and criminal justice systems.

They spoke of a lack of support, lack of access to professional help and an overwhelming lack of understanding about their son’s disability, and the impact this had on their lives.

The problem with education

Under the current UK education system – where everything is based on grades and targets – there is little room for children who disrupt the smooth running of the school. These children are all-too often excluded and made to feel that they are worthless – as one teacher explained:

One kid wanted to go back into mainstream [school], but by the time he was 15, he realised this wasn’t going to happen – he ended up in prison.

For as long as education focuses solely on academic achievement and continues to demand results rather than learning, children and their families will continue to be failed by the system. And, as my research shows, once a criminal pathway is trodden, it is incredibly difficult to find a way out.




Read more:
Britain’s criminal justice system doesn’t know what to do about autism


This means those who need support the most often end up incarcerated. Both Elaine and Udele’s sons (still now only in their 20s), were in “special schools” and continue to be in and out of the criminal justice system. I interviewed Elaine three times and her son Harry, once. Between her interviews, Harry returned to prison.

Rethinking learning

If more support and intervention in the education system was to occur before the police got involved, then these young people would be less likely to end up incarcerated and at the bottom of a human hierarchy.

But for this to happen, there needs to be a rethink of what education is actually about. Because it is clear that the restrictive and damaging nature of the current system just doesn’t work for some pupils.

If instead, schools could help children to learn creatively and open up their minds to new possibilities outside of tests and league tables, then it is likely that more children would stand a better chance of staying out of the criminal justice system and reaching their full potential.The Conversation

Chrissie Rogers, Professor of Sociology, University of Bradford

This article is republished from The Conversation under a Creative Commons license. Read the original article.

In Safe Hands?

Section 7 of the Commissioner for Children and Young People (Scotland) Act 2003, as amended, allows the Commissioner to conduct investigations into:

whether, by what means and to what extent a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (such an investigation being called a “general investigation”)

The first such investigation undertaken was on the issue of restraint and seclusion in Scotland’s schools (“No Safe Place”). The investigation focused on two main issues:

  • The existence and adequacy of policies and guidance.
  • The extent to which incidents are recorded and reported at local authority level.

The investigation was undertaken from an international law perspective – primarily the UN Convention on the Rights of the Child.  But what does Scots law have to say on these thorny issues?

Crime and Punishment

We start with a history lesson.  Following the Scottish case of Campbell and Cosans v. The United Kingdom, the European Court of Human Rights determined that the use of corporal punishment in public schools was a breach of the parents’ rights to ensure that their children’s education was in accordance with their own religious and philosophical convictions.  That’s right, the case to prevent children from being physically chastised at school was decided on a parents’ rights basis, not a children’s rights one!  Obviously.

The UK and Scottish Governments have subsequently taken various steps to eliminate the use of corporal punishment from schools.  Section 16 of the Standards in Scotland’s Schools etc. Act 2000 imposes a ban on the use of corporal punishment, by removing any such defence in relation to the crime of assault.

So far, so good.  The legislation then goes on to say that anything done for reasons which include averting:

  1. an immediate danger of personal injury to; or
  2. an immediate danger to the property of any person (including the pupil themselves).

… does not count as corporal punishment.

And, that’s it.  That is basically all the law has to say about physical intervention in schools, which is to say almost nothing.  Note that the law does not say that it is okay to do these things, just that they are not corporal punishment (in case anyone was confused).  So what?

Well, corporal punishment is no longer a legal defence to charges of assault against a child (at least insofar as teachers are concerned – the defence of “reasonable chastisement” still exists in some circumstances for parents).  But actions taken to prevent injury to people or damage to property are not corporal punishment.  Which is relevant because they can amount to a defence to a charge of assault.  The law here is essentially a reminder that there is a defence of self-defence (or defence of other people – or property) in some circumstances.  This is subject to all of the usual criminal law rules about taking an opportunity to retreat where available, and ensuring that the level of force used was proportionate.

NB. Massive caveat – I have never done so much as a single day’s criminal law in my life, so my pronouncements on this should be treated with even more caution than usual!

And of course criminal law approaches to this issue mean that a criminal standard of proof applies to any prosecution (i.e. beyond reasonable doubt) – which may be problematic if relying on the evidence of younger children or children with additional support needs.

The use of restraint or seclusion in schools, perhaps as a result, is not often considered by the courts or other legal fora.

Administrative and Policy

One example relatively recently determined by the Scottish Public Services Ombudsman was Case 201607679 (The Moray Council) which is a bit of mixed bag in terms of outcome.  The SPSO determined that the act of restraint itself “was appropriate given the Council’s policy”.  However, the policy had a clear emphasis on avoiding or de-escalating a potential incident – and that staff did not act reasonably in line with their policy to stop the incident taking place.  There is a mixed message here.  The Council could have prevented the need for restraint, but as they did not do so, it was appropriate for them to use restraint against the complainer’s daughter?!

The Ombudsman also found that there had been a failure to document whether the child had sustained any injury following the incident, even though this was required by their own policy.  The Council were asked to provide evidence of the further training for staff which had taken place, and to apologise to the child and her mother.

There have also been a few (unreported) cases on this subject by the Additional Support Needs Tribunals in cases brought in terms of the Equality Act 2010.  The use of restraint or seclusion for a disabled child may amount to discrimination arising from disability (Section 15) where the education authority are unable to show that the treatment was a “proportionate means of achieving a legitimate goal”.

Again, in this context the use (or failure to use) of the correct paperwork has been of significance.  One Tribunal concluded:

There was no proper record of the use of these seclusions kept at any time by the school. Whilst the [education authority] has since devised a new policy which requires that seclusion is a risk-assessed, personalised, reported, recorded and reviewed strategy this policy was not in place when the child was secluded.  The Tribunal were unable to conclude upon what basis the seclusion was used as there are no records of its use, purpose or outcome in respect of it being used for the Child.  In the absence of these safeguards the [education authority] were unable to demonstrate to the Tribunal that the use of seclusion could be justified as proportionate to a legitimate aim in these circumstances.

That is all quite legalese, but what it is basically saying is that without the proper planning, policy and records, it will be difficult to persuade a Tribunal that the use of seclusion on disabled children has been lawful.

Overall, there are some small encouraging signs, but this is set against the backdrop of a system (educational, legal and political) which gives every appearance of valuing teachers above children.

Employees and Employments

For example, the case of Porter v. Oakbank School in 2004 which remains, to my knowledge, the only time that the issue of physical restraint in schools has been considered by the appeal courts in Scotland in terms.  This case involved a teacher at the school who fractured a pupil’s arm while trying to escort him to the “quiet room”, as he had been out of class without permission.

While accepting that an appeal decision is not going to be the best medium for getting a full sense of the facts of the case, it does seem that there was, perhaps, an incomplete understanding of the nuances involved, even allowing for the fact that this was over 15 years ago.

The judgement summarises the context as follows: “The .. school [is] for children with special educational needs. .. The school was accustomed to dealing with disruptive and unruly pupils. The staff received tuition in ‘crisis and aggression limitation and management’ (CALM), a technique for controlling violent or disorderly persons.”  This is a description with which CALM Training may take some issue!

The Court found that there was not sufficient evidence of unnecessary force in this case, and cast doubt on “whether textbook solutions were practicable in the emergency that pupil A had himself created.”  The Court upheld the earlier decision that the teacher had been unfairly dismissed by the school.

Reporting and Responding

It will therefore be interesting to see what response there is to the Commissioner’s report.

The Commissioner found that while children’s rights are referenced in many policies, they are not given meaningful expression in terms of how they should impact on practice.

There was also criticism of the Scottish Government for failing to produce a national policy to ensure consistent and lawful practice, something which groups like Positive and Active Behaviour Support Scotland (PABSS) have been calling for for years.

Several recommendations were made, including:

  1. Local authorities should, as a matter of urgency, ensure that no restraint or seclusion takes place in the absence of clear consistent policies and procedures at local authority level to govern its use.
  2. The Scottish Government should publish a rights-based national policy and guidance on restraint and seclusion in schools. Children and young people should be involved at all stages of this process to inform its development. The policy and guidance should be accompanied by promotion and awareness raising.

All those who are subject to recommendations are required to respond to the Commissioner in writing by 31 January 2019.