In this recent appeal against a Sheriff's decision, the appellant local authority was partially successful, but was still found to have unlawfully discriminated.
DM was a disabled pupil at an independent special school. He has an autism spectrum disorder and dyspraxia and experiences severe social anxiety. As a result of his disability, his education had been interrupted and he struggled to make an effective transition to further education. His school and the college in question concluded towards the end of his sixth year that DM was not ready for post-school transition and recommended that he remain at school for a seventh year - warning that otherwise he might descend into depression. The local authority had some other transition ideas, but these were only at an “embryonic” stage.
DM's mother applied to Fife Council for funding for a seventh year at school. This application was refused, on the grounds that, having reached the age of 18, the Council owed no further duties to the him in terms of the Education (Additional Support for Learning) (Scotland) Act 2004.
On appeal, the Inner House found that the Sheriff had not expressed his reasoning and conclusions in the correct way, but that there was enough in the findings-in-fact, findings-in-fact-and-law, and the note to support the Sheriff's decision that Fife Council had unlawfully discriminated against DM.
In considering the case, the court made reference to the complexities which arose due to the interaction between education legislation and the Equality Act 2010. Quoting the written submissions of the Equality and Human Rights Commission, who intervened, Lady Paton noted that the “duties under the Equalities Acts may have the effect that local authority powers arising under other legislation ought to be exercised in a particular way in order to avoid unlawful discrimination.”
While there was a “clear cut-off point” for education at the age of 18, and there could therefore be no prima facie criticism of the local authority's decision to refuse to provide education beyond that age, there were other relevant considerations in this case. Specifically, this was a young person who was disabled, and therefore the Equality Act and related legislation and guidance applied.
The local authority's ready dismissal of the request for an additional year at school was criticised: “they required to give that request careful thought”. Specifically, they had to take into account the statutory framework in which the response to the request had to be made: “the defenders had to take into account the terms of section 149 of the Equality Act 2010; sections 12(5), (6) and (13) of the Education (Additional Support for Learning) (Scotland) Act 2004; and the Supporting Children's Learning Code of Practice (Revised edition 2010) paragraphs 27 et seq (school to post-school transition)” - that is, the public sector equality duty (PSED) and the post-school transition duties.
The Inner House found that the Sheriff had been entitled to find that there had been indirect disability discrimination in respect of the provision, criterion or practice (PCP) of not funding the education of persons over the age of 18 (other than those who attained the age of 18 in their final year of schooling).
Lady Paton considered that “the defenders had made a decision that they would not advise the pursuer and his family of the various options and strategies available and invite further discussion or applications for grants or bursaries, thus failing to alert the pursuer and his family to ways of facilitating the pursuer's development and learning processes so that he, as a disabled person, could endeavour to achieve the appropriate social, emotional and academic standards which would render his attendance at college – or indeed any other school-leaving goal – more feasible.”
Further, the defenders had failed in their reasonable adjustment duties by failing to advise DM's mother of the various funding options available.
While the Sheriff had also found that age discrimination had occurred, the Inner House disagreed - “Where a statutory duty applied to one group and not another, this was a material difference between the circumstances of the two different age groups.”
The Sheriff had awarded the pursuer £43,410 in respect of the additional school fees incurred, and £2,500 in respect of injury to M's feelings (mid-range of the lower band of Vento). The Inner House upheld the injury to feelings award, but did not consider that the school fees could be awarded as “I do not think that it can be the case that a reasonable adjustment for such a class of disabled persons would be to pay the fees for a further year of school education in every case.” (per Lord Bracadale)
Leave to appeal to the Supreme Court has been granted.
Iain Nisbet is an education law specialist and consultant solicitor at Cairn Legal (www.cairnlegal.co.uk), and was the pursuer's solicitor in this case. He runs the Additional Support Needs Blog at www.additionalsupportneeds.co.uk
Last updated: 12 May 2016