Probationary teacher with Asperger’s successfully challenges decision to remove him from teaching register

The appellant, MS, argued that the Fitness To Teach Panel of the General Teaching Council of Scotland had failed to take into account the effect of his Asperger’s on his failure to meet the standards for full registration as a teacher. He was prohibited by the panel from re-applying for registration for a year.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Woolman and Lord Doherty. The appellant was represented by MacNeil QC, and the respondent by Lindsay QC.

Little in way of adjustment

The appellant began his probationary teaching period at the beginning of the academic year 2017-2018 but was unable to finish the full year due to illness. As a result he was granted an extension of his probationary period to December 2018 and placed in a second school for the academic year 2018-2019.

The local authority that employed the appellant recommended that his provisional registration should be cancelled because his fitness to teach was impaired by lack of professional competence. A case overview report prepared by the local authority alleged that he had failed to meet the required standards for full registration as well as certain standards common to both provisional and full registration.

At a hearing of the Fitness To Teach Panel, the appellant accepted that he had not met the standards for full registration but maintained that he met the standards for a probationer. He believed that key factors in his failure were the effects of his Asperger’s syndrome, and the failure of the schools where he worked to make sufficient reasonable adjustments to assist him with it.

The appellant’s case was that the first school he had been placed at had done very little in the way of adjustments. In the second school, certain reasonable adjustments had been agreed with the appellant at the outset but they had not been sufficient and had not been fully or properly implemented. The appellant’s solicitor did not lead any medical or other expert evidence at the panel hearing in support of this proposition.

Following the hearing the panel removed the appellant’s name from the GCTS register of teachers and prohibited him from applying for re-registration for one year from the date of removal. The appellant challenged this decision, arguing that by proceeding to determine his fitness to teach without having regard to the essential issue of his Asperger’s, the panel’s decision was vitiated.

In response, it was submitted for the respondent that the appellant had failed to identify any material error of law, irrational exercise of discretion, or procedural irregularity with the FTTP’s decision. The panel had made sufficient consideration of the appellant’s condition, having provided him with written questions about it in advance of the hearing which he had answered orally at the hearing itself.

Fundamental questions raised

The opinion of the court was delivered by Lady Dorrian. Evaluating the panel’s consideration of the adjustments made by the appellant’s second school, she said: “There were considerable efforts to try and identify reasonable adjustments, [and] certain adjustments appear to have been agreed with the appellant. There can also be no doubt that at least some of those adjustments were implemented. However, in our view there was a significant factual dispute which the panel ought to have, but did not, resolve; namely, whether all of the agreed adjustments were properly implemented.”

She continued: “Even if the panel had duly performed its duty to make findings in fact on that issue, it seems unlikely that that would have wholly resolved the more fundamental questions which the appellant’s evidence raised.”

Noting that the evidence given by the appellant about his condition was opinion evidence, she went on to say: “It would have been open to the panel to find that the appellant’s evidence on these matters was unreliable; or that because he was not qualified to give skilled evidence no weight should be attached to it. On the other hand, since the proceedings were inquisitorial rather than adversarial, it could have decided that these aspects of the appellant’s evidence raised potentially important issues which merited further investigation.”

She continued: “It was not obliged to do that; but we are in no doubt that it was a course which was open to the panel. It could have raised with the parties the evidential difficulty which arose because of the absence of skilled evidence, and it could have adjourned the hearing to give them the opportunity to submit further evidence if so advised.”

Lady Dorrian expressed sympathy for the position of the panel, saying: “It was placed in a difficult position because the appellant did not lead expert medical evidence about his disability; or medical or other expert evidence relating to the reasonable adjustments which he required; and whether he would have been likely to meet the standards with those adjustments. However, we agree with senior counsel for the appellant that the effect of the panel’s decision was that it proceeded as if the issues relating to the appellant’s Asperger’s, reasonable adjustments, and their possible effect on his progress could be ignored.”

She concluded: “The panel had to engage with those aspects of the appellant’s evidence and decide how to deal with them, such as by following one or other of the courses already discussed. What it was not was not open to the panel to do was to disregard that evidence without properly explaining the basis upon which it was taking that course.”

For these reasons, the appeal was allowed. The court ordered that the existing decision of the panel be quashed, and the matter reconsidered by a different constituted panel.