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.
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:
- Does the First-tier Tribunal (SENDIST) have the power to order reinstatement of an excluded pupil to school?
- How can decisions of the First-tier Tribunal (SENDIST) be enforced, if not by the Tribunal itself?
- 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?
- 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.
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.
In this, my second blog post to mark Deaf Awareness Week 2019, I wanted to look at the rights of deaf pupils at school. What are those rights, and how does that translate into actual support for deaf pupils in reality?
A child or young person has additional support needs if they require additional support in order to benefit from school education (Section 1, Education (Additional Support for Learning) (Scotland) Act 2004). This applies to all children and young people for whose school education a Scottish education authority are responsible. So, anyone at a local authority school or nursery, or placed at an independent or grant-aided special school by their local authority.
The type of additional support which may be required will vary from one deaf pupil to another, but the education authority has a duty to make “adequate and efficient” provision for those needs, whatever they happen to be (Section 4(1)(a) of the 2004 Act). The Code of Practice, for example, makes specific reference to support from a “peripatetic teacher of the deaf” (Chapter 2, para 13).
Also of relevance is the Equality Act 2010, which imposes a reasonable adjustment duty on schools in relation to disabled pupils – including deaf pupils. This duty applies to all schools in Scotland, whether they are public schools, grant-aided schools or independent schools. Again, what constitutes a reasonable adjustment for one deaf pupil will not necessarily mean that it is appropriate for another. It all depends on the individual child or young person, their needs and their preferences.
The Technical Guidance for Schools in Scotland does have some useful and instructive examples. At para 6.40, there is an example of a deaf pupil who reads lips – in that case “a reasonable adjustment would have been to train all staff to ensure that they face the pupil when speaking to him”. At 6.48, a list of potential reasonable adjustments includes “Assistance from a sign language interpreter, lip-speaker or deaf-blind communicator”.
Whether relying on the rights found in the 2004 Act or the 2010 Act, deaf pupils and their families have access to various dispute resolution mechanisms, including mediation, independent adjudication and the Health and Education Chamber of the First-tier Tribunal for Scotland (also known as the Additional Support Needs Tribunal).
I spoke to Alasdair O’Hara, Head of Policy and Influencing at the National Deaf Children’s Society (Scotland) , in order to get an idea of the current picture of support for deaf pupils in Scotland’s schools:
Deafness isn’t a learning disability and we know that deaf children can do just as well in life as any other child, so long as they get the right support.
Deafness is a low incidence need with 87% of deaf children and young people educated within mainstream schools, meaning those professionals and teachers that support deaf pupils often require access to specialist expertise such as Teachers of the Deaf.
The latest Scottish Government data shows that deaf young people are now 30% less likely to collect Highers or Advanced Highers than their hearing classmates, with only 42% deaf young people collecting the qualifications, compared to 60% of their classmates.
The data also shows that 10% of deaf children will now leave school with no qualifications at all, and are half as likely to go to university as their hearing friends.
To work towards closing this unacceptable attainment gap, other simple improvements can be made in mainstream education settings. Good classroom acoustics, deaf pupils having access to technology and ensuring teachers are deaf aware and know how to use the technology correctly are all vital in supporting a deaf child’s learning.
This tells me that while there is a good level of inclusion for deaf pupils within mainstream schools, more could still be done to ensure that there is a level playing field, allowing them to access education on the same terms as their hearing peers. Last year, the Tribunal reported only one case which concerned a deaf pupil. Where additional support and/or reasonable adjustments required are not in place, pupils and parents alike should be made aware of their rights – and how to enforce them.
Today marks the start of Deaf Awareness Week – a week aimed at promoting the positive aspects of deafness and the benefits of social inclusion. Organised by the UK Council on Deafness, this annual campaign brings together all organisations that work in the field and highlights the wide range of support available for deaf people and their families and friends.
This year’s theme is ‘celebrating role models’ across all sectors – with a different focus each day. Today is the turn of ‘Education and Employment’, so it seemed apt that I take the opportunity to recognise those that have, and continue to, inspire and educate me.
As many of you will know my work often sees me advocating for the rights of children with additional support needs, including those who are deaf. Deaf children have the right to additional support to enable them to benefit from school education. They are also entitled to reasonable adjustments which minimize or remove disadvantages arising from their disability while at school. But these rights mean little without individuals committed to making them a reality.
I have recently had an opportunity to work alongside the staff and management at Donaldson’s School – and have heard from parents about the excellent work they do with Deaf pupils who have autism or other additional support needs as well.
I also continue to work with the tireless family support workers at NDCS Scotland, who provide a national support service to families of deaf children throughout the country. Their commitment, knowledge and dedication is much appreciated by the families I know who have benefited from their input.
And, of course, there are teachers in classrooms across Scotland, implementing small (and not so small) changes which positively impact the lives of deaf children, and those with other additional support needs.
Who are your education role models?
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.
80% of learning in schools is through vision – which means that traditional education models exclude children with visual impairments. The number of
children with a visual impairment (VI) has more than doubled in the last seven years which, when coupled with a reduction in specialist VI teachers, makes the issue of how VI children are supported in their learning journey a critical one.
Attainment, measured by the number of pupils moving onto a ‘positive destination’ after school, is 5% lower for children and young people with a visual impairment than for those without additional support needs (although it is currently on an upwards trajectory). More worryingly, progression to higher education for VI students is on the downturn.
With Scotland’s education system presuming that a child will be educated in a mainstream environment (Section 15, Standards in Scotland’s Schools etc Act 2000), it is likely that visually impaired pupils will attend a mainstream school. The fall in numbers of specialist teachers and support staff, however, can mean that VI children are left to cope with a visual learning environment without adequate adaptation or support.
The Royal Blind, the charity which runs the Royal Blind School, has recently launched a campaign to highlight the difficulties faced by pupils with a visual impairment. ‘Our Vision for Equal Education’ furthers their commitment to a future where all vision impaired children and young people receive the specialist support they need. The campaign includes four key actions:
- A Scottish Government Action Plan to recruit and retain the specialist teachers needed for the increased numbers of vision impaired pupils.
- A new SQA training qualification in vision impairment for education support staff and others, including those providing care and therapy.
- Effective transitions for vision impaired young people post-school education.
- A fair and pupil centred placement system for vision impaired young people.
These campaign aims, if realised, would support education authorities and others in fulfilling their duties to make adequate provision for the additional support needs of pupils with a visual impairment, and to make reasonable adjustments to avoid substantial disadvantage to such pupils as a result of their disability.
For more information about the campaign, please go to: https://www.royalblind.org/royal-blind/campaigns/reports-and-consultation-responses/our-vision-for-equal-education
Photo credit: https://www.flickr.com/photos/rolanddme/4944962234
The second newsletter is now available to download. Do please read it, share it and subscribe for future editions.
This editions covers: notes on the news; the attainment challenge; meeting children’s healthcare needs in school; school clothing grants; and a spotlight on Enquire.
You can also let me know what you think about the newsletter or its contents in the comments.
Some pupils with additional support needs are also disabled and, as such, enjoy the additional protections of the Equality Act 2010.
One of these additional protections is the reasonable adjustments duty.
The duty to make reasonable adjustments includes three requirements:
- adjustments to avoid substantial disadvantage arising from a provision, criterion or practice (“PCP”);
- adjustments to avoid substantial disadvantage from the physical features of a building;
- adjustments to avoid substantial disadvantage by providing an auxiliary aid (or auxiliary service).
The second requirement does not apply to schools. In Scotland, the Education (Disability Strategies and Pupils Educational Records) (Scotland) Act 2002 apply instead. This Act requires responsible bodies for schools to draft an accessibility strategy, which sets out planned improvements to the physical accessibility of the school (among other things). Cf. “Planning improvements for disabled pupils’ access to education: Guidance for education authorities, independent and grant-aided schools” (Scottish Government Guidance).
A failure to comply with a reasonable adjustments duty in relation to any disabled person amounts to unlawful discrimination.
The reasonable adjustments duty for schools applies in relation to:
- deciding who is admitted to the school; and
- providing education or access to a “benefit, facility or service” (this might include school lunches, uniform policy, playtimes, out of school trips, after-school clubs, assemblies, discipline etc. etc.).
In deciding whether an adjustment would be reasonable or not, you should read and consider the Technical Guidance for schools in Scotland, which gives a list of factors to bear in mind together with several useful examples.
Without intending to be exhaustive, and in no particular order, the following are some of the factors that are likely to be taken into account when considering what adjustments it is reasonable for a school to have to make:
- The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil;
- The extent to which support will be provided to the pupil under the Education (Additional Support for Learning) (Scotland) Act 2004, as amended;
- The resources of the school and the availability of financial or other assistance;
- The financial and other costs of making the adjustment;
- The practicability of the adjustment;
- The effect of the disability on the individual;
- Health and safety requirements;
- The need to maintain academic, musical, sporting and other standards;
- The interests of other pupils and prospective pupils.
Technical Guidance (6.29)
A pupil with learning difficulties is excluded for repeatedly getting up from his seat during lessons and disrupting other pupils. It is the school’s policy that repeated disruptive behaviour is punished by exclusion. The school is under a duty to make reasonable adjustments to its policy, which might mean disregarding some of the disruptive behaviour and working with the pupil to find a way in which to help him to remain in his seat during lessons.
Technical Guidance (4.12)
A visually impaired child requires printed handouts to be prepared in 24pt font or larger. This can easily be accommodated by ensuring that fonts are reset to this size prior to any documentation being printed.
Technical Guidance (6.45)
A school’s duty to make reasonable adjustments is often referred to as an “anticipatory duty” and it is owed to disabled pupils generally. Therefore, schools must plan ahead and consider in advance what disabled pupils may require, rather than simply responding to difficulties as they arise.