Tag: Tribunals

Case Summary: Aberdeenshire Council v. CD (Upper Tribunal for Scotland)

On By Iain NisbetIn Additional Support Needs, Case summaryLeave a comment

This is an interesting case concerning the criteria for determining which children or young persons require a Co-ordinated Support Plan (CSP).

Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 sets out the criteria as follows:

For the purposes of this Act, a child or young person requires a plan (referred to in this Act as a “co-ordinated support plan”) for the provision of additional support if-

(a) an education authority are responsible for the school education of the child or young person,

(b) the child or young person has additional support needs arising from-

(i) one or more complex factors, or

(ii) multiple factors,

(c) those needs are likely to continue for more than a year, and

(d) those needs require significant additional support to be provided-

(i) by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education, or

(ii) by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority themselves.

Section 2(1), Education (Additional Support for Learning) (Scotland) Act 2004

The meaning of this provision, and of its four criteria, has already been the subject of much discussion. Some of the criteria are more straightforward than others.

The criterion set out in Section 2(1)(d) tends to be the one which is the hardest to pin down, and has needed the most in the way of judicial interpretation. Of particular note is the case of JT v. Stirling Council [2007] CSIH 52, which more or less settled the correct approach to deciding whether particular support(s) can be considered as “significant” or not.

This case considered the question of what the modifier “significant” applies to in the first place.

CD’s request for a CSP

CD is a pupil in a mainstream secondary school. With the assistance of an advocacy worker from the national children’s support service, My Rights, My Say, he made a formal request to his education authority (Aberdeenshire Council) to determine whether he required a CSP. The education authority decided that he did not.

There was no dispute over subsections 2(1)(a) to (c). It was accepted that these criteria were met. However, the education authority decided that 2(1)(d) did not apply. It was (more or less) accepted that the child required significant additional support from the education authority in the exercise of their education functions. The education authority, however, found that the additional support the child required from social work and health services was not significant.

This then, was at the heart of the matter. Should the Tribunal be considering whether the additional support required (across education and the other agencies) was significant? Or should it consider separately whether the additional support from education was significant and – in addition – whether the additional support from the other agency or agencies was significant. At the First-tier Tribunal (Health and Education Chamber), the first was described as being a “cumulative approach” and the latter as being a “non-cumulative approach” (although the Upper Tribunal did not adopt these terms).

At the First-tier Tribunal, a cumulative approach was adopted, and the education authority were ordered to prepare a CSP for the child. In fact, the Tribunal decided that he would be eligible for a CSP under either approach in any event. This means that the Upper Tribunal appeal which was lodged by the education authority would not have an effect of whether or not CD should have a CSP, but it would certainly have an impact on whether other children and young persons will receive such plans.

As Lady Poole (the Upper Tribunal Judge) notes: “CSPs benefit pupils for whom they are necessary, but they also place burdens on education authorities with finite resources” (pg 2, para 2).

It therefore matters, both for children and young people with additional support needs, but also for education authority finance officers, which approach is correct.

The correct approach

In the end, the decision for the Upper Tribunal was a relatively easy one.

My decision is that the FTS ought to have concluded that in order to meet the criterion in section 2(1)(d), as well as the pupil requiring significant additional support from the education authority, the pupil also had to require significant additional support either from the local authority exercising functions other than education or from one or more appropriate agencies.

Aberdeenshire Council v. CD [2023] UT 28, per Lady Poole at para 10

You can read the full decision here: Aberdeenshire Council v. CD [2023] UT 28

The Upper Tribunal was satisfied that the ordinary meaning of the words “as well as” as used in subsections 2(1)(d)(i) and (ii) was that both sets of additional support had to be significant.

This was held to be consistent with intention of the Scottish Parliament. While it was conceded that “It may be that co-ordination of services would be of assistance, even if services provided by a body external to the education authority are not ‘significant’ ..” it was held that the formal, statutory document of a CSP was intended only “for those with the most extensive co-ordination and support needs”. It was held that this approach “is likely to channel CSPs to cases where there is an increased need to co-ordinate services from different services.”

While the specific issue in this case had not been considered before, the approach adopted by the Upper Tribunal was consistent with statements made by the Inner House of the Court of Session in other cases considering questions of eligibility for a CSP. Even though the point may not have been argued, there was “a consistent assumption common to all of [the cases] which has endured since shortly after the 2004 Act came into force .. It is appropriate that this clear and consistent body of caselaw is followed, rather than the FTS taking a different approach.”

Finally, the preferred approach was consistent with the Code of Practice which, while not binding on the Upper Tribunal, would need a good reason to depart from its provisions. In the view of the Upper Tribunal “insufficient reasons are available in this particular case to depart from the relevant parts of the Code of Practice.”

Additional comments

As sometimes happens, having made the decision, the Upper Tribunal went on to make some more general comments – in this case about Co-ordinated Support Plans. The comments are extremely helpful, and so I am taking the time to summarise them here for you. As the Upper Tribunal notes: “CSPs can be of great benefit to a person with additional support needs and their families, so it is important the statutory criteria are applied properly.”

The Upper Tribunal first noted that just over 241,000 pupils in Scotland have additional support needs (approx. one third of the total pupil population). Of those pupils, only 1,401 have CSPs (i.e. around 0.2% of all pupils). It has been noted elsewhere that while the numbers of pupils with additional support need has been increasing year on year, the numbers of co-ordinated support plans, paradoxically, have been dropping year on year. (cf. “Vital support plans for pupils ‘disappearing'” The Herald, 2019)

  1. The Upper Tribunal notes that the wording of section 2(1)(d) is “those needs require significant additional support to be provided”. That is, what does the child or young person require – not what are they being provided with, or what has been offered. The answers to these questions may differ. As the UT notes “an approach that analyses only support that has in fact been provided, rather than what needs ‘require’, may in some cases be too narrow”. In my experience, all too often an education authority’s pro forma enquiry to appropriate agencies asks only what is being provided. This needs to change.
  2. The Upper Tribunal reiterates the well established approach to determining whether support is “significant” or not – it “is to be judged by reference to the need for co-ordination, with attention being paid to frequency, nature, intensity and duration of the provision of support, and the extent to which the support is necessary for achievement of educational objectives”. This is a useful restatement of the test, underlining the centrality of the need for co-ordination, and the multi-factorial nature of the test. The Upper Tribunal goes on to observe that the term significant “is not intended as an impossibly high standard”.
  3. The decision is clear that there should be no “cumulative approach” or summing-up of support across education and other services. However, the Upper Tribunal confirms the Code of Practice’s approach, which is to take a cumulative approach in determining whether there is significant additional support from sources external to the education authority. “The totality of support required from providers external to the education authority exercising education functions should be considered, in order to determine if it amounts to significant additional support.”

Conclusion

From a pupils’ rights point of view, the decision is a disappointing one, as the opposite decision would likely have led to a substantial increase in the numbers of pupils receiving a CSP. However, I think it is the correct decision, given the wording of the section, the Inner House authority and Code of Practice. And, in its concluding comments, the Upper Tribunal has provided some useful guidance for education authorities which, if followed, should avoid some children with additional support needs being incorrectly refused a CSP.

Photo credit: sweetlouise via Pixabay

Article on Physical Intervention in Schools

On By Iain NisbetIn Additional Support Needs, Pupil Welfare / WellbeingLeave a comment

It is a little late to be bringing you news of the publication of Edition 9 of the Health and Education Chamber’s Bulletin – as it has been available since November! However, the Bulletins, which are always worth a read, are slightly tucked away in a corner of the website where you wouldn’t necessarily stumble across them.

So, I am letting you know that the latest Bulletin contains some really useful and interesting material including:

  • an update on the return to “in person” hearings;
  • an article by Angela Morgan OBE, independent chair of the review of additional support for learning;
  • an article by one of the legal members on the case of Cowie & Ors v Scottish Fire and Rescue Service on what is meant by “unfavourable treatment”;
  • an article by one of the specialist members on The Promise, and what steps are being taken to implement it, particularly in the Falkirk / Forth Valley area.

It also features an article by me on the Scottish Government’s draft guidance on the use of physical intervention in schools. the article can be found on pp 16-19 of the Bulletin. It looks in detail at cases which have been decided by the Tribunal concerning the use of restraint / physical intervention in schools.

National guidance will undoubtedly be of assistance to tribunals considering claims of disability discrimination in cases of physical intervention or restraint. The rights based approach adopted by the Scottish Government aligns well with the Tribunal’s existing decisions.

Article: “Draft Guidance on the Use of Physical Intervention in Schools” Nisbet, I. (HEC Bulletin, Ed 9) Nov 2022

To read the full article, you can access the Bulletin here:

“The Bulletin” Edition 9 (Nov 2022) – Health and Education Chamber (PDF)

Education Appeal Committees – the end?

On By Iain NisbetIn Additional Support Needs, Consultation responses, Placing RequestsLeave a comment

The Scottish Government recently consulted on a (longstanding) proposal that the functions of education appeal committees (hearing exclusion appeals, and most placing request appeals) be transferred to the Health and Education Chamber of the First-tier Tribunal for Scotland.

With the assistance of colleagues, I prepared a response on behalf of My Rights, My Say. The edited highlights of the response are below.

Continue reading “Education Appeal Committees – the end?” →

Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill

On By Iain NisbetIn Consultation responses, Equality Act 2010, School EducationLeave a comment

The Education, Children and Young People Committee is the lead committee for the Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill, a private member’s Bill, introduced by Pam Duncan-Glancy MSP.

The period for interested parties to submit their views on the Bill to the Committee has recently ended. Here is a summary of my submissions.

Continue reading “Disabled Children and Young People (Transitions to Adulthood) (Scotland) Bill” →

Welsh lessons

On By Iain NisbetIn Additional Support Needs, ASL Review, School EducationLeave a comment

So, I came across an article on Special Needs Jungle on the new Additional Learning Needs and Education Tribunal (Wales) Act 2018, which came into force on 1 September 2021. This seems to represent a sweeping change in the special educational needs framework (now to be known as additional learning needs). You can read about the changes here: The new “rights-based” Additional Learning Needs system in Wales

Welsh Government Factsheet

Based on what I have read, there are some interesting and welcome features in this new legislation:

  • Covers ages 0 to 25, as opposed to 3-18 (roughly) in Scotland
  • A single statutory plan for everyone with additional learning needs, as opposed to a tiny proportion who fit with the arcane criteria for a Co-ordinated Support Plan (CSP)
  • A focus on local resolution of disagreements, backed by wide and consistent rights of access to the Education Tribunal for Wales
  • A “whole system” approach, including external agencies and the stages before and after school
  • A Code of Practice which embeds principles from the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities

As you know, the ASN Review is now in its implementation phase, and we are currently waiting for the review on CSPs to report and a revision to the Code of Practice (I think). So, plenty of opportunities to adopt some of these ideas from Cymru.

Image by Pete Linforth from Pixabay

Reasonable adjustments for schools in a time of pandemic

On By Iain NisbetIn Additional Support Needs, Equality Act 2010Leave a comment

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

Overview of the legal framework

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

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

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

Reasonable adjustments

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

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

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

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

Discrimination arising from disability

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

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

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

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

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

Overlap with additional support needs framework

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

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

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

Issues arising during the Covid-19 pandemic

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

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

Recent Tribunal cases

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

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

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

Image by Hatice EROL from Pixabay

Potential Energy (Part 2)

On By Iain NisbetIn Additional Support Needs, ASL Review, School Education1 Comment

Continuing our consideration of the ASL Review Report, the main section of the report begins with “Theme 1: Vision and visibility”.  This covers two big issues.  One is that there is no defining national agenda or narrative in relation to additional support needs, demonstrated perhaps by their absence from the National Improvement Framework.  The second is that the term “additional support needs” continues to be misunderstood and misinterpreted, with the result that particular groups of children and young people who are covered by the law missing out on their rights in practice.

Continue reading “Potential Energy (Part 2)” →

Mainstreaming, I presume? (Part 9)

On By Iain NisbetIn Additional Support Needs, Inclusion, Placing Requests, School EducationLeave a comment

And so, we finally get to the core of the guidance, which is the duty itself and – almost as importantly – the three exceptions to that duty.  As the guidance notes: “If there is doubt about the suitability of mainstream provision, it is the role of the education authority to use the legislation to weigh up a range of matters including the child or young person’s wellbeing, in order to reach a conclusion on the application of the three exceptions..”

Continue reading “Mainstreaming, I presume? (Part 9)” →

Placing request timescales amended

On By Iain NisbetIn Additional Support Needs, Exclusion, Placing Requests, School Education1 Comment

The Education (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020 came into force on 23 April 2020, having been laid before the Scottish Parliament at 4.30pm the day before.

In short, they give the education authority more time in which to take a decision on placing requests, and education appeal committees more time in which to hear appeals.

Changes to the Education (Placing in Schools) (Scotland) Regulations 1982

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days

Changes to the Education (Appeal Committee Procedures) (Scotland) Regulations 1982

  • An appeal committee must now acknowledge receipt of an appeal reference within 28 days (an increase from 5 “working days”).
  • A hearing of the appeal must be held by the appeal committee as soon as reasonable practicable within the period of 3 months following receipt of the reference (an increase from within 28 days). If this is not possible “owing to circumstances beyond their control”, the hearing should be held “as soon as reasonably practicable” (changed from “as soon as possible”). The same applies to combined hearings.
  • The education appeal committee must now give notification of the date and other details of a hearing as soon as reasonably practicable (changed from 14 days after receipt of the reference in most cases).
  • The format of hearings may change, as the regulations allow for a hearing to be conducted in whole or in part by video link, telephone or “other means of instantaneous multi-party electronic communication”.
  • The appeal committee may also (if all parties agree) decide an appeal reference without a hearing, based on consideration of written submissions and evidence alone.
  • Education appeal committees have 28 days to notify parties of their decision, and the reasons for it (changed from 14 days).

Changes to the Additional Support for Learning (Placing Requests and Deemed Decisions) (Scotland) Regulations 2005

These are the equivalent regulations to the Education (Placing in Schools) (Scotland) Regulations 1982, in relation to children and young people with additional support needs.

  • The date on which a placing request (if not decided upon) is deemed to have been refused (if made on or before 15 March, for a place at the start of the next school year) is 31 May. This is effectively the deadline by which authorities should be taking these decisions. It has been extended from 30 April to 31 May.
  • For other placing requests (e.g. those made after 15 March, or for a placement starting immediately) the date on which it is deemed to have been refused is at the end of 3 months following the receipt of the placing request by the education authority. This has been increase from 2 months to 3 months.
  • Where an education appeal committee has failed to hold a hearing of a placing request appeal within the period of 4 months following receipt by the committee of the appeal reference, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 2 months to 4 months.
  • Where an education appeal committee has failed to fix a new date following an adjourned hearing of a placing request appeal within the period of 28 days following the adjournment, the committee will be deemed to have confirmed the decision of the education authority (i.e. to have refused the appeal). This has been increased from 14 days to 28 days.
  • The deadline for the authority making known to the appellant and the committee all of the information relevant to their decision is now “as soon as reasonably practicable” (changed from “immediately”).

Observations

The changes to the education appeal committee regulations will impact on exclusion cases as well as placing request cases.

The deadline for a parental appeal to the education appeal committee remains the same at 28 days.

The deadlines applicable to appeals to the First-tier Tribunal for Scotland (Health and Education Chamber) remain the same. However, these were never as stringent in the first place, and are currently subject to the Guidance to Tribunal Members No 01/2020 “Hearings and the Covid-19 Outbreak” – which means that only time critical cases can currently proceed to a hearing (with a fairly strict definition of “time critical”).

As you know, most placing requests (including for children or young people with additional support needs) are heard by the education appeal committee. Appeals on placing requests for special schools (or special units), or for children and young people with a Co-ordinated Support Plan are heard by the Tribunal instead.

The implication of this is, of course, that if placing request decisions are not being taken until 31 May, and the appeal committee has up to four months to hear an appeal, in all likelihood that leads to significant numbers of appeals on placing requests not being heard until well into the next academic year. Apart from anything else, this makes transition planning for such cases challenging, to say the least.

The final point to make is that these regulations are not made under the new powers conferred by the Coronavirus Act 2020 or the Coronavirus (Scotland) Act 2020. They are made using existing regulation making powers. As such, there is no expiry date on these changes, and no scheduled review date. These changes will remain in force until further regulations are passed to amend them.

Image by mac231 from Pixabay

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

On By Iain NisbetIn Equality Act 2010Leave a comment

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.