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Additional support needs and age criteria

20 June 16

Education briefing: was it discrimination for a local authority to refuse to fund an additional year’s special education for a disabled pupil who required it to achieve post-school transition?

by Iain Nisbet

In November 2014, the Journal considered a sheriff court decision in which the Equality Act 2010 was applied in favour of a disabled young person who required an additional year at school (“Age before duty” www.journalonline.co.uk/Magazine/59-11/1014667.aspx). The case was recently considered on appeal by the Inner House of the Court of Session, and reported as DM v Fife Council [2016] CSIH 17.

On appeal against the sheriff’s decision, the local authority was partially successful, but was still found to have unlawfully discriminated.

To recap, DM was a disabled pupil at an independent special school. He had an autism spectrum disorder and dyspraxia and experienced 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, DM having reached the age of 18, the council owed no further duties to 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.

Complex interaction

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 & Human Rights Commission, which 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.

While the court made specific reference to the UN Convention on the Rights of the Child as the council’s justification for adopting 18 as their cut-off point, recent developments in Scots law arguably take a more nuanced approach. For example, s 22 of the Children and Young People (Scotland) Act 2014 specifically provides for the continuation of the controversial “named person” scheme for those pupils over the age of 18, for as long as they remain at school. Similarly, amendments to the Education (Additional Support for Learning) (Scotland) Act 2004 (introduced by the schedule to the Education (Scotland) Act 2016) will mean that those with additional support needs will remain a “young person” for as long as they remain at school.

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 s 149 of the Equality Act 2010; s 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), paras 27 et seq (school to post-school transition)” – that is, the public sector equality duty (PSED) and the post-school transition duties.

Win one, lose one

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. However, the Inner House disagreed with the sheriff on what the appropriate level of damages would be as a result (with Lady Paton close to dissenting: cf para 66) – see below.

While the sheriff 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.” While this may be the case, it does not address the question of the final weeks of DM’s education where his education was provided even though the landmark of his 18th birthday had passed.

The age discrimination aspects of the case are of particular interest, not just because of their rarity (outside the employment field), but because the local authority had not advanced any justification defence. Therefore, all the judicial consideration was of whether there had been discrimination in the first place.

Reasonable adjustment

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 [2003] ICR 318). 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).

This was not a point that was taken at first instance, or argued on appeal, and the question remains as to whether damages equivalent to the school fees can be appropriate, even if the payment of those fees would not in itself have been a reasonable adjustment. As the sheriff noted at first instance, “nothing was done to assist the pursuer’s transition from school to adult life. He was in effect abandoned”. Could the failure by the local authority to make any reasonable adjustments mean that the fairest approach would be to quantify damages in line with the additional expenditure incurred in school fees?

Permission to appeal to the Supreme Court, and permission to cross-appeal, has been granted by the Court of Session.

Iain Nisbet is an education law specialist and consultant solicitor at Cairn Legal (www.cairn legal.co.uk), and was the pursuer’s solicitor in this case. He runs the Additional Support Needs Blog at www.additionalsupportneeds.co.uk
This article is a revised and expanded version of a note which first appeared as part of the Equality & Human Rights Commission’s Legal Bulletin.

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Bernie redman

Friday July 1, 2016, 07:44

Our "funding" for a two year transitional placement also disappeared into thin air. Still nothing even now. Severe complex needs including in our case non-verbal autism, epilepsy, and a chromosome abnormality. Aged 19 and gets 4 hours a week in local adult centre. I always thought there would be autism specific help out there when he became an adult but there is really no such thing as transitions for complex needs like my son. He lives here with me 24/7.