This is a recently reported age and disability discrimination goods and services case which was heard at Kirkcaldy Sheriff Court. It deals with the local authority exercising educational and other functions relevant to the post-school transition process.
M was a disabled pupil at a residential independent school. He has an autism spectrum disorder and dyspraxia. In particular, he experiences severe social anxiety. He had been placed at the school following a successful placing request appeal. During his 6th year (2012-13) a transition process to E College was attempted, including trial placements at two separate courses. By early May 2013, it had been concluded by both the school, and the college that M was not ready for a transition to college. They recommended that he remain at school for a seventh year, warning that otherwise, M might descend into depression. The authority had some other transition ideas, but these were only at an “embryonic” stage.
M'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 (in June 2013), the Council owed no further duties to the pursuer in terms of the Education (Additional Support for Learning) (Scotland) Act 2004.
Having taken the decision to refuse any further funding, the Sheriff found that “from that moment on nothing was done to assist the pursuer's transition from school to adult life. He was in effect abandoned.”
In particular, the Council had not appreciated the nature of their responsibilities to the pupil in terms of the Equality Act, their public sector equality duties and the Code of Practice (“supporting children's learning”). They failed to “take specific and pro-active action to assist the pursuer”.
The Council's practice of refusing funding for a seventh year amounted to a PCP (“provision, criterion or practice”) for the purposes of the 2010 Act. Notwithstanding that there was no written policy to that effect, it was clear from the evidence that such a policy was in operation. It was clear that the PCP put disabled pupils at a “substantial disadvantage” in comparison to non-disabled pupils. It was also clear that the Council having failed to carry out an equality impact assessment of that PCP and having failed to undertake any assessment on the reasonableness of the proposed extra year could not argue any justification of the PCP. “..the defenders” commented the Sheriff “simply looked for a way to avoid the pursuer's mother's request for funding and ignored their statutory duties to the pursuer. It was the defenders' inaction that [left] the pursuer in the position he found himself as at May/June 2013, namely limbo.” The Council had thereby indirectly discriminated against the pursuer because of his disability.
While the Sheriff made some criticisms of the approach adopted by the school, he found that “[t]hese failings however do not excuse the defenders failure to meet their statutory obligations to the pursuer.”
The Sheriff found that the decision letter written by the Council referred only to one factor: that of the pursuer’s age. Their later attempts to demonstrate consideration of other factors could not remedy the original defect. While it is possible in law to justify otherwise unlawful direct age discrimination, the Council neither pled, nor led evidence in relation to, a defence of justification. The Council had thereby directly discriminated against the pursuer because of his age.
The Sheriff 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).
Fife Council have lodged an appeal to the Court of Session.
Iain Nisbet is head of education law at Govan Law Centre, and was the pursuer's solicitor in this case. This digest is based on an earlier article for the Additional Support Needs Tribunals for Scotland bulletin.
Last updated: 07 Apr 2016