Council breached Equality Act over failures in supporting autistic child’s return to education

The Inner House of the Court of Session refused an appeal by Edinburgh City Council against an Additional Support Needs Tribunal for Scotland ruling that the education authority failed to make “reasonable adjustments“ in respect of the child’s education, which amounted to “discrimination on the grounds of disability” in terms of the Equality Act 2010.

Co-ordinated support plan

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Malcolm, heard that the appeal concerned a decision made by the ASNT in response to a claim made by the mother of a teenage child with a severe disability.

She began refusing to go to school when her mental health and behaviour deteriorated significantly in the summer of 2013, and she had not attended school at all since December 2015.

Her difficulties arose from a diagnosis of autism spectrum disorder and mental health issues, which significantly limited her ability to benefit from, or meaningfully engage with education, unless given significant support.

In April 2014 her mother “R” requested assessment for a co-ordinated support plan (CSP) in terms of section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004.

Subsequently proceedings were raised in respect of a failure to provide a CSP, and the tribunal issued a direction requiring that a finalised CSP be issued no later than 6 January 2016.

On that date the City of Edinburgh Council, as education authority and responsible body, issued a finalised CSP, but the tribunal found it to be inadequate and the authority was required to amend it by 11 November of that year.

It was contended that the authority had failed to provide an adequate and effective education, but the authority, which accepted that the revised plan remained inadequate, argued that this followed inevitably from the child being out of school for a lengthy period.

‘Unfavourable treatment’

The tribunal held that where a pupil, in consequence of disability, has additional support needs such that she requires a CSP, then a failure to provide an adequate plan is “unfavourable treatment” and “discrimination arising from disability” in terms of section 15 of the 2010 Act.

The delay, followed by the inadequacies of both plans, constituted discrimination arising from the pupil’s disability, with the discrimination was said to have occurred in the way the authority provided education for the child in terms of section 85(2)(a)), and it subjected her to a “detriment” in terms of section 85(2)(f).

The tribunal found that the the “problem” in the case was not a failure to make reasonable adjustments, but the absence of an adequate CSP, which resulted in “a lack of strategic oversight and a failure to co-ordinate measures of support and reasonable adjustments which would help the child”.

The local authority appealed against that decision to the Court of Session, arguing that the tribunal “erred” in concluding that there was unfavourable treatment in terms of section 15 of the 2010 Act, and that there was a breach of duty in terms of section 85.

Furthermore, it was submitted that the tribunal failed to make the necessary findings in fact to support its conclusions, and “did not provide adequate reasons”.

It was argued that there was “no evidence” of a lack of co-ordination and strategic oversight, and the tribunal “ignored” the evidence of the support provided and the reasonable adjustments made for the pupil.

‘Reasonable conclusion’

However, the appeal judges did not accept that submission.

Delivering the opinion of the court, Lord Malcolm said: “As a specialist body the tribunal was more than entitled to conclude that the deficiencies in the plan would have these consequences. It was a reasonable conclusion to draw given the failure to provide the responsible persons with an appropriate educational objective or objectives supported by the expression of sensible and practical means to achieve the desired result.”

It was also argued that the identified deficiencies in the plan and their consequences did not amount to a failure to provide education for the pupil in terms of section 85(2)(a); education had been provided in various ways, for example, through the virtual learning environment and from a visiting teacher.

But judges held that this was “too narrow” a view as to the scope of the duty not to discriminate.

Lord Malcolm said: “Where it is needed, a CSP is an important part of the authority’s educational responsibilities… The CSP should set out the educational objectives for the child and the measures necessary for their fulfilment…

“We identify no error in the tribunal’s view that the deficiencies in the plan will have impacted adversely on the education provided to the pupil. In any event, we doubt whether the court would have been entitled to substitute any different opinion of its own for that of the specialist body entrusted with making these decisions. We see no need for any findings in fact over and above those made by the tribunal.”

The final submission for the authority was that there had been no identification of the basis for the conclusion that, in terms of section 15(1)(a) of the 2010 Act, the authority had treated the pupil unfavourably “because of something arising in consequence of (the pupil’s) disability”.

At the appeal hearing it appeared that both counsel considered that this provision meant that the delay and inadequacies in respect of the CSP required to be caused or contributed to by the pupil’s disability, as opposed to, for example, by a lack of adequate resources, systemic failures, or sheer carelessness on the part of the authority.

No error in tribunal’s findings

But the court considered that the suggested approach involved an “erroneous construction” of the wording in section 15(1)(a).

“If the intention was that the disability must be a cause of the treatment being unfavourable, this was a curious way of expressing it,” Lord Malcolm said.

He added: “In the present case the ‘something’ was the delayed and then inadequate CSP. While as a generality a CSP can be required in respect of a pupil without a disability, in the context of this claim, if the pupil had not been disabled there is no reason to suppose that there would have been a CSP. It was the disability which resulted in the need for the CSP, and it was the CSP which was the unfavourable treatment.

“Overall it is sufficient that the authority knew of the pupil’s disability, subjected her to unfavourable treatment because of a CSP which was required because of the disability, and, in terms of subsection 1(1)(b), cannot show that the treatment was ‘a proportionate means of achieving a legitimate aim’ (there was no suggestion of a legitimate aim). Our conclusion is that the tribunal did not err in its findings…”