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Age before duty

17 Nov 14

The Equality Act has been applied in favour of a disabled young person who required an additional year at school, in a novel sheriff court action

by Iain Nisbet

The recent decision of Sheriff Williamson at Kirkcaldy Sheriff Court in M v Fife Council 2014 GWD 32-630 is understood to be the first non-employment-related age discrimination case to be determined in the UK. It is also noteworthy due to the age of the pursuer – he had only just turned 18. Finally, the fact that it concerns discrimination on grounds of both age and disability makes the decision particularly interesting.

Section 28(1)(a) of the Equality Act 2010 provides that for the purposes of Part 3 (Goods and Services), age discrimination does not apply in respect of anyone under the age of 18. Similarly, s 84 provides that age discrimination does not apply at all in relation to schools (Part 6, Chapter 1).

Additional needs

The facts concern the decision of a local authority to refuse funding for a disabled pupil to continue attending a special school for an additional year of secondary education. Had the school in question been a public school (i.e. a school under the management of the authority itself), the case would have fallen under Part 6, Chapter 1 of the Act, and the disability discrimination aspects would have been determined by the Additional Support Needs Tribunals for Scotland rather than the sheriff court. As it was, the school in question was an independent special school, which meant that the case was determined in terms of Part 3 of the Act, which deals with goods and services and public functions.

M was a disabled pupil at a residential independent school. He had an autism spectrum disorder and dyspraxia. In particular, he experienced severe social anxiety. He had been placed at the school following a successful placing request appeal, made by his parents in terms of sched 2 to the Education (Additional Support for Learning) (Scotland) Act 2004.

In terms of ss 12 and 13 of that same Act, the local authority owed the pursuer duties in terms of planning and managing the process of his transition from school to post-school provision. This duty is owed to all pupils with “additional support needs” in terms of s 1 of the Act.

During his sixth year at school (2012-13) a transition process to college was attempted, including trial placements at two separate courses. By early May 2013, it was clear to both the school and the college that M was not ready for a transition to college. Staff from both institutions 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 the sheriff found that these were only at an “embryonic” stage.

Significant birthday

M's mother applied to Fife Council for funding for an additional 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. The language of that Act throughout includes references to “children” and “young persons”. Pupils cease being “young persons” in education law terms abruptly on the occasion of their 18th birthday.

Having taken the decision to refuse further funding, the local authority took no further steps to assist the pursuer with a transition to a suitable post-school provision. 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”.

The council had not appreciated the nature of its responsibilities to the pupil in terms of the Equality Act, its public sector equality duties, and the code of practice (“Supporting children's learning”) to the 2004 Act. It failed to “take specific and proactive action to assist the pursuer”.

The council's practice of automatically 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 this PCP put disabled pupils at a “substantial disadvantage” in comparison to non-disabled pupils.

It was also clear that the council had failed to carry out an equality impact assessment in relation to that PCP, and had failed to undertake any assessment of the reasonableness of the proposed extra year. That being the case, the authority 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.

The sheriff did make some criticisms of the approach adopted by the independent school, but found that “These failings however do not excuse the defenders' failure to meet their statutory obligations to the pursuer.”

The decision letter refusing the request for an additional year at school made reference to only one factor, which was that of age. It simply stated that, as the pursuer would be over the age of 18 by the end of term, the council had no further duties to him and would not be funding any further time at the school. No further reasons were given. It was not difficult to conclude that the pursuer was treated less favourably because of his age – that is, there had been direct discrimination in terms of s 13 of the 2010 Act. While it is possible to argue justification in relation to direct age discrimination, the authority had not pled any justification defence, nor led any evidence which would support such an argument.

The sheriff awarded the pursuer £43,410 in respect of the additional school fees he had incurred in securing the additional year at school through direct arrangement with the school. He also awarded a sum of £2,500 in respect of injury to M's feelings, deciding that – as a one-off act of discrimination – it properly belonged in the lower band of damages in terms of Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102.

Proactivity required

This case is one which should serve as a reminder to local authorities of the proactive nature of their duties to school leavers with additional support needs in general, and disabled pupils in particular. In particular, the public sector equality duty found in s 149 of the 2010 Act (and given further force under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012) requires an anticipatory approach which seeks not only to eliminate discrimination but to promote equality of opportunity.

Some disabled young people will need extra time at school, perhaps to catch up on education missed due to ill health, to finish certificated courses and qualifications, or simply to develop the maturity and confidence to succeed in the adult world. This case is an important reminder to authorities that decisions on when a young person leaves school should be based on their needs and not just when their birthday is.

Fife Council has 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. John McKendrick was counsel for the pursuer.

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