DDC/2014/01

 

 

DECISION OF THE TRIBUNAL

 

 

 

 

A. Claim

 

1. This is a claim under the Equality Act 2010 (‘the 2010 Act’) in which the Claimant alleges certain breaches of the 2010 Act by the Responsible Body. The Tribunal had regard to a substantial body of documentary evidence, arranged in a bundle with page numbers T1-T237, A1-34 and R1-401 (in total, 672 pages)  as well as to three days of oral evidence. A number of Directions were produced by the Convener in advance of the evidential hearing (the main Directions can be found at T106-108, T131-132 and T141-146). The Convener issued a Decision on Preliminary Issues on 16^th May 2014 (T126-130). The oral evidence was heard on 27^th and 28^th May and 24^th July, all 2014. The final day of evidence was required following directions from the Tribunal requesting further oral evidence (T141-146). Written submissions were ordered, the period for those submissions coming to an end on 29^th August 2014. A further procedural issue regarding the release of recordings of the evidence (see below at paragraph 10) was dealt with after the evidence was led.

 

B. Summary of the Decision

 

2. The Tribunal found that certain breaches of the Equality Act 2010 occurred. These are outlined in the declarations in paragraph 126, below.

 

3. The Tribunal granted the Claimant three remedies: (1) declarators in relation to each of the 2010 Act contraventions; (2) an order that the second exclusion is removed from The Child records; and (3) an order that the Responsible Body issues a written apology in respect of those contraventions. See below at paragraphs 126-130.

 

C. Preliminary/procedural matters

 

4. There were a number of these which arose before and during the hearing.

 

5. There was a jurisdictional question around the first and second exclusions. The second exclusion was dealt with (with reasons) in the Convener’s decision of 16^th May 2014 (T126-130).  The jurisdiction of the first exclusion is dealt with in paragraph 29, below.

 

6. There was a request from the Claimant to lead further evidence from three witnesses. This request was refused, and is dealt with (with reasons) in the Tribunal’s directions dated 20^th June 2014 (T141-146).

 

7. The Claimant sought permission for an advocate to attend as a supporter for Mum. Witness C attended and gave evidence as a witness. We decided that the attendance of Witness C as a supporter was not necessary for the following reasons. It is clear that the arguments of the Claimant and Mum were aligned on all material points. The Claimant was represented by a solicitor. Further, it was clear to us that Mum and the Claimant were capable of stating their views freely and openly. Indeed, both were confident witnesses.  We also considered the privacy of these proceedings to be relevant. In all of these circumstances, we decided that the attendance of Witness C as a supporter of Mum was not necessary.

 

8. The Claimant requested that the hearing take place in public. This request was declined (see Convener’s decision of 16^th May 2014, T126-130 at T129-130).

 

9. On the final day of the hearing, the Responsible Body sought to add a letter to the bundle. This was a letter dated 23^rd November 2010 from Dr., Locum Consultant Community Paediatrician to Mrs, NHS Speech and Language Therapist, following a consultation with the child. The only part of the letter which was relevant was a postscript which addressed the issue of whether or not the Claimant and Mum had refused to allow the child to be assessed for a ‘pervasive developmental disorder’. The Claimant objected to the addition of this letter to the bundle and indicated that if it was added, further evidence may be necessary. We decided to refuse the request to lodge the letter. It was being proposed late in the day, at the end of all of the evidence, and in any event it is not relevant to the issues to be considered in this case, given the concession that the child had been treated as someone with Asperger’s Syndrome since he attended the school, despite the diagnosis coming in May 2013 (this concession is confirmed in the Responsible Body’s submissions, at T214).

 

10. The Claimant made a request at the end of the oral evidence for access to the digital recordings of the evidence. This led to directions (T234) being issued seeking a written application for access, and any response to that application. Solicitor for the claimant made such a written application (T235). Solicitor for the responsible body opposed the request, and made written representations (T236-237). We decided to refuse the request to release the recordings. In essence, we did so for the reasons outlined by Solicitor for the responsible body in her written representations, and we simply refer to those reasons.

 

11. In general terms, we found the evidence from the witnesses to be credible, reliable and helpful. This was not a case where there were significant factual disputes; where these exist, they are dealt with below. Much of the disagreement between the parties lay in the interpretation of events; around whether the child had been treated fairly and whether he had been provided with an adequate education. There follows a very brief outline of the witnesses, any particular points of note made by any witness is mentioned below.  The child gave his evidence in a very straightforward and helpful fashion. It is clear that he feels the school has discriminated against him, and that he has been treated unfairly in comparison with some other pupils. The Claimant and Mum indicated in their evidence that they felt that the child had been unfairly treated and that the school had not met The Child needs at various points. Both accepted that the child is happier at school more recently compared with the period from 2012-13. Both the Claimant and Mum take the view that the exclusions were unfair and that the child should not have been removed from mainstream education to go into the base. The current Headteacher, Witness F, gave evidence about the exclusions and the decision to place the child in the base. She noted that the child is doing well in school now. She was not the Headteacher during the relevant period. Witness E provided an overview of the ASN support in place for the child over the relevant period, and commented on the exclusions and period in the base. Witness C and Witness D commented on their involvement as advocates and on The Child progress. Witness A and Witness B explained their involvement in aspects of the events (the third exclusion and the Further Education College episode, respectively). Witness G explained how he had arranged for Witness H input in the base, and his further involvement there. Witness H and Witness I spoke around their written statements. We should mention here that we found Witness I’s oral evidence less helpful than it might have been. We formed the impression that he was reluctant to engage as fully as the other witnesses in offering straight, simple and full answers to the questions put to him. This may be a matter of style or lack of experience as a witness, but in any event we mention this for future reference.

 

D. Findings of Fact

 

12. The child was born in 1999. His father is the Claimant, his mother is Mum.

 

13. The child has been educated at School A, since August 2011. He continues his education there. He entered Year 4 in August 2014.

 

14. The child was diagnosed with Asperger’s Syndrome (‘Asperger’s’) on 7^th May 2013. Notwithstanding the date of this diagnosis, he has at all times been supported in School A as a pupil with additional support needs (‘ASN’) and as a child who exhibited the behaviours associated with Autistic Spectrum Disorder. A number of Child’s Plans have been made in respect of him, dated 25^th June 2012, 18^th December 2012, 21^st January 2013, 23^rd May 2013 and 24^th June 2014. The latter is the current plan. These plans provide detailed information on The Child ASN and the support required to meet his needs, including strategies for the management of The Child behaviour. A Coordinated Support Plan (‘CSP’) was put in place for him on 21^st January 2014.

 

15. The child was excluded from School A on three occasions: 29^th September 2012 (‘the first exclusion’); 2^nd May 2013 (‘the second exclusion’); and 22^nd October 2013 (‘the third exclusion’).  The facts found relating to each are outlined in the following three paragraphs.

 

16. The first exclusion occurred following aggressive behaviour by the child to a teacher in class, followed by a threat made by him to that teacher. Little information is available in relation to this exclusion since reference to it was expunged (removed) from The Child educational records following a successful appeal to the Responsible Body’s Education Appeal Committee.

 

17. The second exclusion occurred following an incident in class, which took place on 25^th April 2013. The child and another pupil became involved in an altercation. The child felt that there was an element of provocation by the other pupil. He reacted against the other pupil. He thereafter behaved aggressively towards the other pupil and a teacher.

 

18. The third exclusion followed the refusal by the child and his parents to attend a Further Education College. The Responsible Body approached the child and his parents with a proposal that he should attend Further Education College for his education for a period of 3-4 weeks. His attendance there would enable certain work to be carried out in the base facility at the school in which he was at that point being educated. The child and his parents refused to agree to him attending Further Education College. The school’s plan was that the period at Further Education College would begin on The Child return to school following the Autumn break. He was due to return on 22^nd October 2013. On returning to school, he was excluded due to his refusal to attend Further Education College. On 20^th November 2013, the Responsible Body voluntarily expunged (removed) this exclusion from The Child record. 

 

19. The child was educated outwith mainstream classes from 3^rd September 2013 until 11^th November 2013. During this period, he was educated on a full time basis in School A’s ASN base (‘the base’).  During that period, The Child education was supervised by Witness H, a teacher with significant experience in teaching children with Social, Emotional and Behavioural Needs.  Witness H was asked to supervise him on a 1:1 basis. He was asked to do so by Witness G, Additional Support Needs Officer with the Responsible Body. Witness G has significant experience and qualifications related to educating with children with ASN, and has several qualifications specifically related to the education of children with ASN. The decision to educate him in the base on a full time basis during this period was taken by the Responsible Body’s Area Education Manager. The Area Education Manager took that decision on 31^st August 2013, following a Child Plan Review Meeting in relation to the child, which took place on 30^th August 2013. The Area Education Manager intimated that decision to The Child parents on the same day, leading to the child being placed in the base on a full time basis on the following school day. From the outset of the period, no formal plan was agreed for the delivery of The Child education in the base. The intention was that the period for him in the base would be temporary. No end point for The Child base period was agreed.  During The Child education in the base, he was not permitted to access the library. He was not permitted to have contact with his peers during break times. He was educated partly by Witness H, partly by teachers from the mainstream school classes (for around 4-5 hours per week) and partly by completing work assigned by mainstream school teachers. The base was an unsuitable environment for the child, given his needs. The Responsible Body sought to make physical alterations to the base, to make it user-friendly for him. In order to make those alterations, the Responsible Body attempted to persuade the child and his parents to agree to a period of education for him in Further Education College, with the intention that he would return to the base for his education. The child and his parents did not agree to this suggestion. This led to The Child third exclusion. He found his period in the base to be difficult and frustrating.

 

20. During his time at School A, the child has exhibited challenging behaviour, affecting both pupils and staff at the school. A record of these incidents can be found at T158-164. These incidents are related to The Child Asperger’s. These incidents became more regular between early June and late August 2013. These incidents, as well as formal complaints by The Child parents, led to anxiety on the part of some of The Child teaching staff. Their concerns around their safety and the safety of the child and other pupils, in the absence of action taken to allay their concerns, materially contributed to the decision to remove him from mainstream education into the base.

 

E. Reasons for the Decision

 

21. There are four main aspects of this case which require to be considered in order to decide on the various elements of the Claim:

 

1. The first exclusion of the child which took place on 29^th September 2012.

2. The second exclusion of the child which took place on 2^nd May 2013.

3. The third exclusion of the child which took place on 22^nd October 2013.

4. The education of the child for a period (3^rd September 2013-11^th November 2013) outwith mainstream classes.

 

22. For each of these four elements, we will consider whether one (or more) of the following has occurred:

 

(a) Direct discrimination (s.13 of the 2010 Act).

(b) Indirect discrimination (s.19 of the 2010 Act).

(c) Discrimination arising from a disability (s.15 of the 2010 Act).

 

23. We will then turn to consider the duty of the Responsible Body to make reasonable adjustments (s.20 of the 2010 Act). Each of these forms of discrimination is referred to in s.25(2) of the 2010 Act.

 

24. In considering each of these aspects of the case, we have to be mindful of the burden of proof.  The terms of s.136 of the 2010 Act have the effect of requiring the Claimant to make out a prima facie (on the face of it) case, and if this is done, the burden of proof then shifts to the Responsible Body.  This dynamic is explained in the Explanatory Notes to the 2010 Act at the relevant part of paragraph 443 as follows:

 

“This section provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant.  Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act.”

443.This section provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act.

25. We must also be mindful of the nature of our task. We are looking back at decisions made in the past in relation to THE CHILD. We are not considering the educational provision for THE CHILD now (except insofar as such provision might have an impact on the remedies we consider are appropriate). We do make comment on the current provision in the Additional Comments section below.

 

26. We should add that it is not in dispute that THE CHILD has a disability under the 2010 Act, as defined in s.6(1), namely Asperger’s Syndrome, and has been treated by the Responsible Body as a pupil with ASN since he started attending School A in August 2011. The diagnosis is supported by the Locality Team Assessment Report of 5^th April 2013 (R208-211) and the subsequent confirmation of the diagnosis by a letter issued by a multi-disciplinary team of professionals (R212-213). It was not disputed that The Child ASN contributed to him losing control in the school; indeed, protocols were in place to deal with such instances.

 

27. Further, in each application of s.15 of the 2010 Act, below, we take the view that s.15(2) does not apply, given the content of the previous paragraph, above.

 

28. Finally, the relevant ‘protected characteristic’ referred to in the provisions of the 2010 Act is disability (s.4).

 

 

The First Exclusion

 

29. The Claimant argues that his claim in relation to this exclusion should be considered by the Tribunal, despite being made outwith the usual 6 month time limit. The Convener issued a decision on 16^th May 2014 on this matter (along with other preliminary matters – see T126-130). In connection with this matter, the decision was that the Tribunal would reserve its position on its jurisdiction over this part of the claim. Having now heard the evidence, we have decided that this incident does fall within the Tribunal’s jurisdiction since the claim has not been raised too late. The six month time limit for raising a claim in respect of this exclusion decision expired on 29^th March 2013, over nine months prior to the lodging of the Claim. However, we take the view that this part of the Claim should be regarded as part of a ‘continuing act’ (to use the wording of the June 2013 Technical Guidance for Schools in Scotland, paragraph 8.12) and as such the six month time limit could start much later (see that argument set out in paragraph 4 of the Convener’s decision of 16^th May 2014) namely on the date of the third exclusion, which took place on 22^nd October 2013. In our view, despite the time gap, all three exclusions are connected with The Child behavioural problems, which are directly affected by his disability. The behaviour exhibited by THE CHILD during the first and second exclusions was similar. The third exclusion, while not taking place following a particular incident, was related to The Child refusal to attend a placement in another institution, offered in order to make certain provision for his education outwith mainstream classes at School A. This offer was directly connected with The Child prior behaviour and his disability. Further, the difficulties in managing THE CHILD and the need for professional and parental input into managing his future behaviour were clear by the time of the first exclusion. This can be seen from the content of the Child’s Plan for THE CHILD dated 25^th June 2012 (R333-351). It could not be claimed, then, that these issues developed only after that exclusion. The Responsible Body was aware several months prior to that exclusion of the need to handle THE CHILD in a particular fashion as a result of his behavioural issues. We note here also the acceptance by the Responsible Body (embodied in the findings in fact at paragraph 14, above) that THE CHILD has been supported as a pupil with ASN during his time in School A. This all makes the connections between the three exclusions close in all respects except in time. In our view, they represent a ‘continuing act’. In any event, given their connection, it seems to us to be just and equitable that the Claimant is able to ask the Tribunal to consider all three together. It seems to us that where there are ongoing problems with the education of a child, there may come a point where the parents of that child take the view that a Claim should be made. It may be that this point does not come until the third or fourth incident. That is perfectly understandable. If the law were such that the 6 month time limit were to be strictly observed, parents would be encouraged not to hold back on making claims, in circumstances where, over a longer period, issues might become resolved.

 

30. Turning, then, to consider that first exclusion. Of the three exclusions, this is the one in respect of which we have the least information.  The exclusion was later overturned on appeal, since the education appeal committee took the view that the exclusions procedure had not been followed. This led to the exclusion being ‘expunged’ from The Child records, meaning that there was no longer any reference to it on The Child school file. This contributed to the inability of the Responsible Body to provide the same level of evidence as has been provided in relation to the other exclusions. However, we did hear evidence from Witness F who explained, in outline, what led to that exclusion. The events evidenced to us are, in our view, fairly summarised in the Responsible Body’s main written submission at T220, first paragraph.

 

(a) The first exclusion – direct discrimination

 

31. The first question to consider here is: was THE CHILD directly discriminated against by the Responsible Body under s.13 of the 2010 Act, in such a way as to breach their duty under s.85(2)(e) of the 2010 Act? We would answer that question in the negative.

 

32. The Claimant does not argue that this did happen (s.13 is not mentioned in the Claimant’s submissions). However, for the sake of completeness, we will deal with this possibility. The relevant provision is s.13(1). The proper interpretation of this provision is to compare the treatment of the person with a disability to a person in a similar position, but who does not have a disability. The latter person is known in disability discrimination law as a ‘comparator’. The courts have argued over the correct approach to the identification of a suitable comparator, leading to two approaches: the ‘social model’ and the ‘medical model’. The currently authoritative approach is the ‘medical model’, with the main case being Lewisham London Borough Council v Malcolm [2008] UKHL 43.

 

33. Taking that model as the correct one, this means that we must use a non-disabled person as the comparator for these purposes. We are not satisfied, on a prima facie basis, that a person who does not have a disability would have been treated any differently to THE CHILD. No evidence was led of the approach in general to pupils who behave in the way THE CHILD behaved in the class that day. What is clear is that The Child reaction to the teacher was relatively extreme, and caused the teacher to be in a state of alarm. In the absence of evidence of what the Responsible Body would have done in the face of such behaviour from a pupil without a disability,  we do have in the bundle the Responsible Body’s Management of Exclusions in Schools Policy, June 2012 (R304-327). This was the policy in force at the time of the exclusion, and it is made clear that exclusion should only take place as a last resort (para 2.1, R308, there being no ‘clearly prescribed circumstances’). This policy applies to all pupils, whether disabled or not (although pupils with ASN would have those needs taken into account).The comparator, for these purposes, would have to be taken as someone who has the same history with the school as THE CHILD, but again without the disability. We note the record of incidents which led up to that exclusion (T158-164, only those prior to 28^th September 2012 being relevant for present purposes). Taking all of this together (evidence of what happened on that date, The Child history until that time and the exclusion policy) we are not persuaded that a prima facie case of direct discrimination has been made out. In our view, the comparator would have been likely to be treated in a similar way to THE CHILD. On the reason for the successful appeal against the exclusion, this does not alter our view; it seems to us that the same failure to follow procedures would have occurred if the comparator had been excluded.

 

34. So, we are not satisfied that, in excluding THE CHILD, the Responsible Body treated him less favourably than it would treat others.  There was, therefore, no direct discrimination in this matter.

 

 

(b) The first exclusion – indirect discrimination

 

35. The next question is: was THE CHILD indirectly discriminated against due to the decision to exclude him, under s.19 of the 2010 Act, causing a breach of s.85(2)(e)? We would answer that question in the affirmative.

 

36. The concept of indirect discrimination is not straightforward, but it is concisely explained in the Explanatory Notes to the 2010 Act, paragraph 78:

 

“Indirect discrimination occurs when a policy which applies in the same way for everybody has an effect which particularly disadvantages people with a protected characteristic. Where a particular group is disadvantaged in this way, a person in that group is indirectly discriminated against if he or she is put at that disadvantage, unless the person applying the policy can justify it.”

 

37. The key to the application of s.19 is that there must be a ‘provision, criterion or practice’ which the Responsible Body has applied to THE CHILD, in relation to the decision to exclude (s.19(1)). In our view, the practice which was applied here was the practice of excluding a child whose behaviour (assuming further attendance at the school) would be likely to be seriously detrimental to order or discipline, in circumstances where that behaviour involved aggression and a threat towards a teacher. We are persuaded that the Responsible Body would have applied this practice to pupils who do not have a disability (s.19(2)(a) of the 2010 Act). Now, each case is different, and so we can only generalise, but that is what we are required to do under s.19. We do not require to be satisfied that if a pupil without a disability behaved in precisely the same way as THE CHILD, that he/she would have been excluded. What we need to be satisfied about is the practice of exclusion operated by the Responsible Body. Evidence of the practice comes from the Responsible Body’s policy Management of Exclusions in Schools (R304-327). This policy applies to all pupils, whether disabled or not (although pupils with ASN would have those needs taken into account).

 

38. We are also satisfied that the practice puts THE CHILD, and others who have a disability, at a particular disadvantage when compared with pupils who do not have a disability (s.19(2)(b) and (c)). We have already noted that The Child disability has an impact on his behaviour, and we explain this further below, when dealing with s.15 (paragraph 42, below). This means that due to The Child condition, he is more prone than a non-disabled child to behave in the way he did during the incident in question.

 

39. The final component which must exist before indirect discrimination can be held to have occurred is that we need to be satisfied that the Responsible Body cannot show the practice to be a proportionate means of achieving a legitimate aim (s.19(2)(d)). It is clear that we need to consider if the implementation of that practice in relation to THE CHILD at the point of the second exclusion satisfied this test. The wording of s.19(2)(d) is similar to the wording of s.15(1)(b), and our comments on the burden of proof in relation to that provision apply here (see paragraph 44 below). Given the lack of evidence available, in our view, the Responsible Body has failed to satisfy us that the practice employed on this occasion was a proportionate means of achieving a legitimate aim. The legitimate aim is clear, to discipline a child who has behaved in such a way, in order to restore order and discipline in the class; however, the proportionality of the exclusion is not clear. We would need to hear much more evidence about how the incident happened, and what consultations and processes took place prior to the exclusion, to enable us to reach a view on this matter.

 

40. For these reasons, a case of indirect discrimination has been made out in relation to this exclusion.

 

(c) The first exclusion - discrimination arising from a disability

 

41. The next question to consider is: did the Responsible Body, by excluding THE CHILD, act in such a way as to amount to discrimination arising from disability in terms of s.15 of the 2010 Act, causing a breach of s.85(2)(e)? In our view, the answer to this question is in the affirmative.

 

There is a two stage process to the application of s.15 (1):

 

Stage 1: did the Responsible Body treat THE CHILD unfavourably because of something arising in consequence of his disability? (s.15(1)(a));

 

Stage 2: if yes, can the Responsible Body show that the treatment is a proportionate means of achieving a legitimate aim? (s.15(1)(b)).

 

We will deal with each in turn.

 

Stage 1: did the Responsible Body treat THE CHILD unfavourably because of something arising in consequence of his disability?

 

42. In our view, the answer to the Stage 1 question is in the affirmative.  In relation to this provision, the use of a comparator is not appropriate. This provision involves a focus on the ‘social consequences’ of the disability rather than the disability itself (see comments to this effect in Fredman, S., Discrimination Law, 2^nd ed (2011), Clarendon Law Series at pages 173-174). It seems to us that the exclusion of a pupil from school involves treating him unfavourably. There is a direct link, in our view, between the exclusion and The Child disability. THE CHILD has ASN and has been treated as such by the Responsible Body since at least his first attendance at School A (see the findings in fact in paragraph 14, above). The school staff were well aware of The Child propensity to lose control in certain circumstances. This is clear from the timeline of incidents between 3^rd November 2011 and the incident on 28^th September 2012 (see these itemised at T158-160). It is also clear from the content of The Child Child’s Plan which was in place at the time (R333-351), that THE CHILD had a tendency to lose control in school in certain circumstances:

 

“When THE CHILD gets very upset or stressed, he can occasionally lose self-control and display aggression towards others. (R339 under the first ‘Pressures’ heading);

 

“The school will need to put measures in place to minimise conflicts with peers.” (R339, under the second ‘Pressures’ heading);

 

“On occasion, he has responded with verbal aggression to pupils’ comments. THE CHILD knows he shouldn’t use aggression, but he finds it difficult to control his anger, when he is wound up.”  (R342, under ‘Summary of discussion’).

 

43. Further, it is clear that shortly after this exclusion (26^th October 2012), educational psychology input began (see Witness I’s statement at T152). Following on from this, certain advice was provided to the school about strategies to assist with THE CHILD (see letter of 29^th November 2012 from Witness I at R216-7 to the then Headmaster).  Given all of this, it is clear to us that there is a prima facie case that the exclusion of THE CHILD represents unfavourable treatment because of something arising in consequence of his disability. That something is The Child inability to control his behaviour, and his resort to aggression, in certain circumstances. This has been clearly recognised as an issue related to The Child ASN since he joined the school. That prima facie case has not been rebutted by the Responsible Body.

 

Stage 2: can the Responsible Body show that the treatment is a proportionate means of achieving a legitimate aim?

 

44. We answer this question in the negative.  Although the general burden of proving discrimination begins with the Claimant (s.136 of the 2010 Act – see discussion above), in our view, the burden of establishing that s.15(1)(b) applies falls on the Responsible Body. In other words, when considering how the burden of proof operates in s.15, looking at the matter overall, the Claimant must establish, on a prima facie basis, that discrimination has occurred.  If so, the burden shifts to the Responsible Body. However, it seems to us that the burden of establishing the component part embodied in s.15(1)(b) rests on the Responsible Body, since the language indicates that the Responsible Body (‘A’) must show that the treatment is a proportionate means of achieving a legitimate aim. It would be difficult (if not impossible) for the Claimant to discharge even a prima facie burden in relation to s.15(1)(b). It is not uncommon in statutory provisions of this kind (where someone has to prove what is effectively a ‘defence’) for that person to bear the burden of proof on that matter. The same reasoning applies to the similarly worded provision in s.19(2)(d).

 

45. In our view, there is insufficient information from which we can conclude that the exclusion was a proportionate means of achieving a legitimate aim. The aim was to bring the disruption caused by The Child behaviour to an end. That aim is certainly legitimate in a classroom setting where other pupils are being educated and where they are observing how the school reacts to behaviour of that kind. On whether the exclusion was a proportionate means of achieving that aim, as we noted earlier, The Child behaviour was relatively extreme. We cannot say that the exclusion was the last resort, since we simply do not have sufficient evidence of exactly what happened and why the school reacted as it did. Given that the burden of establishing that s.15(1)(b) applies rests on the Responsible Body, we are unable to conclude that this burden has been discharged.

 

46. In conclusion, then, we are satisfied that in deciding to exclude THE CHILD on 28^th September 2012, there occurred indirect discrimination and discrimination arising from disability.

 

The second exclusion

 

47. This exclusion occurred following an incident in class, which took place on 25^th April 2013. There is some dispute between the parties as to precisely what occurred. However, given our analysis of the decision to exclude, we need not reach a view on the precise mechanics of the incident. What is common ground is that THE CHILD and another pupil became involved in an altercation. THE CHILD felt that there was an element of provocation by the other pupil. The witness statements of members of three members of staff who were present (R275-278) indicate that THE CHILD punched the other pupil and that he raised the chair as if about to use it to strike the other pupil. These accounts broadly coincide with the statement of the other pupil (R279). The Child account was that he had been poked in the back by the other pupil and that in response he had grabbed the pupil’s chair and pulled it out from under him. This account (given by THE CHILD in his evidence) was a little different from that noted in the minute of a meeting which took place on 2^nd May 2013 (R255) in which THE CHILD is noted as having admitted hitting the other pupil. However, The Child own written account, provided at the time (R258), is largely consistent with his account to us in evidence.

 

48. What is clear is that a physical altercation took place, and that thereafter, THE CHILD behaved aggressively towards the other pupil and a teacher.

 

49. Following this incident, the Headmaster began an investigation. He felt unable to complete it until he had taken The Child account of events. On 26^th April 2013, the Headmaster wrote to The Child parents inviting them (and THE CHILD) to a meeting on 2^nd May 2013 (see his letter at R261). That meeting took place on 2^nd May (see two similar accounts of that meeting, prepared by the school, one dated correctly at R255, the other dated incorrectly as 9^th May 2013, at R256-257, the former being minutes, the latter entitled ‘rough notes’).

 

50. During that meeting, the Headmaster decided to exclude THE CHILD for two days, namely 2^nd and 3^rd May 2013.  That exclusion was unsuccessfully appealed to the education appeal committee by The Child parents (see the outcome letter of 30^th May 2013 at R222).

 

(a) The second exclusion – direct discrimination

 

51. The first question to consider is: was THE CHILD directly discriminated against by the Responsible Body under s.13 of the 2010 Act, in such a way as to breach their duty under s.85(2)(e) of the 2010 Act? We answer this question in the negative. The Claimant does not argue that this did happen (s.13 is not mentioned in the Claimant’s submissions). However, for the sake of completeness, we will deal with this possibility.

 

52. We refer to the discussion above of the relevance of a ‘comparator’. We are not satisfied, on a prima facie basis, that a person who does not have a disability would have been treated any differently to THE CHILD. It is clear that the behaviour exhibited was at the extreme end of disruptive behaviour in a classroom. Had a pupil who does not have a disability behaved in that way, we think it is quite probable that the same course of action would have been adopted. We reach this view in considering the statutory ground for the exclusion, namely that the continued attendance of the pupil at the school would be likely to be seriously detrimental to order and discipline in the school. We should stress that we are not of the view that the exclusion was justified (we do not think it was - see below) but for the present purposes, we must only consider the question of how a comparator would have been dealt with. We feel that the error the Headmaster made in excluding THE CHILD (caused by a misinterpretation of the statutory ground of exclusion) would have been made in relation to any other child, whether having a disability or not.

 

53. So, we are not satisfied that, in excluding THE CHILD, the Responsible Body treated him less favourably than it would treat others.  There was, therefore, no direct discrimination in this matter.

 

(b) The second exclusion – indirect discrimination

 

54. The next question is: was THE CHILD indirectly discriminated against due to the decision to exclude him under s.19 of the 2010 Act, causing a breach of s.85(2)(e)? We would answer that question in the affirmative.

 

55. In our view, the practice which was applied here was the practice of excluding a child whose behaviour (assuming further attendance at the school) would be likely to be seriously detrimental to order or discipline, in circumstances where that behaviour involved aggression towards a pupil and teachers. We are persuaded that the Responsible Body would have applied this practice to pupils who do not have a disability (s.19(2)(a) of the 2010 Act). The reasons are the same as those advanced in support of the applicability of s.19(2)(a) in relation to the first exclusion (see paragraph 37, above).

 

56. We are also satisfied that the practice puts THE CHILD, and others who have a disability, at a particular disadvantage when compared with pupils who do not have a disability (s.19(2)(b) and (c)). We have already noted that The Child disability has an impact on his behaviour. The evidence of such impact would have been even clearer by the time of the second exclusion than at the time of the first exclusion. By the time of the second exclusion, THE CHILD was receiving formal input from educational psychology (see Witness I’s statement, T151-156, at T151-152). Indeed, Witness I makes it clear that he gave certain advice to the school in advance of the decision to exclude THE CHILD, pointing out certain aspects of The Child condition which might have impacted on the incident (see his statement at T155). It is clear, then, that not only does such a disadvantage exist, the impact of The Child disability in a situation such as that which prompted the second exclusion was specifically drawn to the attention of the school in advance of the decision to exclude him.

 

57. The final component which must exist before indirect discrimination can be held to have occurred is that we need to be satisfied that the Responsible Body cannot show the practice to be a proportionate means of achieving  legitimate aim (s.19(2)(d)). It is clear that we need to consider if the implementation of that practice in relation to THE CHILD at the point of the second exclusion satisfied this test. The wording of s.19(2)(d) is similar to the wording of s.15(1)(b), and our comments on the burden of proof in relation to that provision apply here (see paragraph 44, above). However, we should say that even if we assume that the prima facie burden is on the Claimant, then switching to the Responsible Body (with no burden of proof on the Responsible Body to establish any component) the outcome in relation to this exclusion would have been the same, given the clarity of the evidence.

 

58. In our view, it is clear that the exclusion of THE CHILD, to take effect on 2^nd and 3^rd May 2013, was not a proportionate means of achieving a legitimate aim. The reason for this lies in the timing of the exclusion. Turning to the ground for the exclusion (that to allow the pupil to continue attendance at the school would be likely to be seriously detrimental to order or discipline in the school or the educational wellbeing of pupils), it might be the case that such a ground could justify an exclusion occurring from the date of the incident, or perhaps the following day. This ground could not, however, be said to be satisfied on 2^nd May 2013, being the date of the decision to exclude (as well as the first day of the exclusion). It is clear to us that the statutory ground of exclusion relied upon is designed to take the excluded pupil out of school, to avoid the likelihood of serious detriment to order or discipline or educational wellbeing of pupils. By the time of the exclusion, the incident was well and truly over. THE CHILD had gone home that day and six full intervening days had passed. It could not, on any view, be said that the continued attendance of THE CHILD at the school on 2^nd and 3^rd May would be likely, due to the incident on 24^th April, to be seriously detrimental to order or discipline in the school or to the educational wellbeing of the pupils. The Responsible Body argued that the delay was caused by the Headmaster’s desire to follow proper process (particularly in the context of the first exclusion having been successfully appealed due to lack of process) and to take into account the views of THE CHILD and his parents. However, the Responsible Body’s own processes allow for exclusion on the grounds of gross misconduct in the absence of consultation (see the Responsible Body’s Management of Exclusion in Schools policy (R304-327 at paragraph 2.4)). Further, the procedure outlined in that policy for exclusions of 1 to 5 days makes it clear that the exclusion is envisaged as happening at the same time as (or close in time to) the incident which gave rise to the decision to exclude (see R312).  In any event, whatever the reason for the delay (and even as here, where the delay is alleged to have been caused by The Child parents not attending earlier for a meeting), the question is whether the ground of exclusion is or is not met at the time of the exclusion decision. The school sought to base its decision on the seriously detrimental to good order and discipline exclusion ground (Schools (General) Scotland Regulations 1975 (SI1975/1135), regulation 4(b)). This can be inferred from the Education Appeal Committee’s decision letter of 30^th May 2013 (R222), refusing the appeal against the exclusion. It seems to us that the only purpose of an exclusion one week later is a punitive one. In these circumstances, the exclusion was not proportionate, the punishment of a pupil in these circumstances not being the proper role of exclusion from school. It is clear that Parliament does not view the proper role of an exclusion based on order/discipline or educational wellbeing as punitive; rather the purpose is preventative. In our view, where the grounds on which a school may lawfully exclude a pupil are prescribed by statute (in regulation 4, it is stated that the school shall not exclude a child except on the grounds provided there), only an exclusion which happens on the basis of one of the available grounds can be said to be a proportionate means of achieving a legitimate aim. Any other exclusion (such as this one) is unlawful, and an unlawful act by the Responsible Body cannot be branded ‘proportionate’ in law.

 

59. Given that all of the conditions in s.19(2) have been met, the Responsible Body discriminated indirectly against THE CHILD when it excluded him from school on 2^nd May 2013.

 

(c) The second exclusion - discrimination arising from a disability

 

60. The next question to consider is: did the Responsible Body, by excluding THE CHILD, act in such a way as to amount to discrimination arising from disability in terms of s.15 of the 2010 Act, causing a breach of s.85(2)(e)? In our view, the answer to this question is in the affirmative.

 

61. We will follow the required two stage process as above for the first exclusion.

 

Stage 1: did the Responsible Body treat THE CHILD unfavourably because of something arising in consequence of his disability?

 

62. In our view, the answer to the Stage 1 question is in the affirmative.  In relation to this provision, the use of a comparator is not appropriate. Again, we refer to the discussion of the comparator in the context of s.15 earlier. Exclusion of a child amounts to unfavourable treatment. It is clear here that this treatment arose because of something in consequence of his disability. We refer above to the connection between The Child behaviour in class and his condition. It is clear that the school sought advice from Witness I prior to excluding him and that this advice included advice on how THE CHILD would, as a result of his disability, be likely to react to provocation and how he would perceive events in comparison with pupils who are not disabled (see his statement at T155). In our view, there is ample evidence from which we can conclude that The Child behaviour on the day in question was influenced by his disability, and that the exclusion arose in consequence of that behaviour.

 

Stage 2: can the Responsible Body show that the treatment is a proportionate means of achieving a legitimate aim?

 

63. We answer this question in the negative.  We refer to our reasoning above employed in relation to a similarly worded test in s.19(2)(d) of the 2010 Act in the context of this exclusion. The treatment (the exclusion) was neither a means of achieving a legitimate aim, nor was it proportionate.

 

64. In conclusion, then, we are satisfied that in deciding to exclude THE CHILD on 2^nd May 2013, there occurred indirect discrimination and discrimination arising from disability.

 

 

 

The Third Exclusion

 

65. This exclusion followed the refusal by THE CHILD and his parents to attend Further Education College Learning Centre (‘Further Education College’). The Responsible Body approached THE CHILD and his parents with a proposal that THE CHILD should attend Further Education College for his education for a period of 3-4 weeks. His attendance there would enable certain work to be carried out in the base facility at the school in which THE CHILD was at that point being educated (see below on this). The work that was deemed to be required and the background to this proposal are set out in the letter from, Director of Education, Culture and Sport for the Responsible Body to Mr dated 21^st November 2013, R373-376, more particularly at R374.

 

66. THE CHILD and his parents refused to agree to THE CHILD attending Further Education College, setting out their position in an e-mail from Mum to Witness G on 10^th October 2013 (A25). In her oral evidence, Mum indicated that THE CHILD was not willing to go since he saw it as a punishment, and that Further Education College was mentioned to the family for the first time at the end of August 2013.  She also indicated that the family felt under pressure to agree to the placement (Witness B’s evidence supported the notion that Mum felt under pressure). The school’s plan was that the period at Further Education College would begin on The Child return to school following the Autumn break. He was due to return on 22^nd October 2013. He was taken to school that day by Witness A, a family friend, since the Claimant was ill. THE CHILD was called into a meeting with Witness G, Mr (Head of Education for the Responsible Body), Witness H and Witness A (the latter having been called into the meeting).  THE CHILD was asked if he would attend Further Education College, but persisted in his refusal to do so. Head of Education for the Responsible Body decided that THE CHILD should be excluded for 10 days, with immediate effect.

 

67. The basis of the exclusion is set out by Director of Education, Culture and Sport for the Responsible Body, in his letter of 21^st November 2013, namely:

 

“..as an emergency measure to give a period of calm and rethinking.” (R374, final paragraph).

 

68. This exclusion was later expunged from The Child record, and the Responsible Body subsequently expressed regret at having excluded THE CHILD (see Witness E’ letter of 7^th January 2014, R380).

 

(a) The third exclusion – direct discrimination

 

69. The first question to consider is: was THE CHILD directly discriminated against under s.13 of the 2010 Act, in such a way as to breach the duty to not discriminate against THE CHILD in excluding him under s.85(2)(e) of the 2010 Act? The Claimant does not argue that this did happen (s.13 is not mentioned in the Claimant’s submissions). However, for the sake of completeness, we will deal with this possibility. We refer to the discussion above of the relevance of a ‘comparator’.

 

70. We are not satisfied, on a prima facie basis, that a person who does not have a disability would not have been treated any differently to THE CHILD. We are in no doubt that the exclusion was entirely unjustified, but we cannot say that the Responsible Body would have acted differently in dealing with an equivalent situation for a non-disabled comparator. There is no evidence from which we can infer this. In other words, although the exclusion was (for reasons we explain below) unjustifiable, there is no evidence from which we can infer that the Responsible Body would have treated an able bodied person more favourably.

 

71. So, we are not satisfied that, in excluding THE CHILD, the Responsible Body treated him less favourably than it would treat others.  There was, therefore, no direct discrimination in this matter.

 

(b) The third exclusion – indirect discrimination

 

72. The next question is: was THE CHILD indirectly discriminated against due to the decision to exclude him under section 19 of the 2010 Act, causing a breach of s.85(2)(e)? We would answer that question in the affirmative.

 

73. In our view, the practice (under s.19(2)(a)) which was applied here was the practice of excluding a child who refuses to comply with a proposal relating to the provision of education. In this case, the proposal was that THE CHILD should attend Further Education College for his education for a period of 3-4 weeks while work was carried out on the school’s base facility.

 

74. We are convinced that the failure to agree to a proposal of this magnitude (one affecting the whole environment in which the education is to be provided) would have led to the exclusion of a non-disabled pupil (s.19(2)(a)). An equivalent situation might be the persistent refusal of a non-disabled pupil to attend a particular class. In such a case, we have no doubt that the Responsible Body would invoke the statutory ground of refusal that the parent of a pupil refuses to comply (or to allow the pupil to comply) with the rules of the school (regulation 4(a) of the Schools General (Scotland) Regulations 1975) (SI1975/1135)).

 

75. We are also satisfied that the practice puts THE CHILD, and others who have a disability, at a particular disadvantage when compared with pupils who do not have a disability (s.19(2)(b) and (c)). This relates to the particular circumstances of this exclusion. THE CHILD had no third option available to him: he either had to attend another institution for his education for 3-4 weeks or he would be excluded. Using the example in the paragraph above of a pupil who refuses to attend class:  although he/she would face exclusion in the event of refusal to do so, the ultimatum for THE CHILD was starker. In order to avoid being excluded, he would have to agree to attend another institution entirely. The reason for this was that there was regarded as being no suitable place within the school grounds to teach THE CHILD while the work was being carried out in the base. This lack of suitable teaching facility was directly related to The Child disability (as is clear from the circumstances in which the decision was made to educate THE CHILD in the base – see below on this). A pupil who did not have a disability would not have been asked to attend a different place for his/her education. Such a move would involve disruption and anxiety for any child. In other words, THE CHILD (and others with a similar disability) was (would be) at a particular disadvantage when compared to a pupil in a similar situation but with no disability.

 

76. The final component which must exist before indirect discrimination can be held to have occurred is that we need to be satisfied that the Responsible Body cannot show the practice to be a proportionate means of achieving  legitimate aim (s.19(2)(d)). The practice as exercised here did not have a legitimate aim. The aim, as explained by Director of Education, Culture and Sport for the Responsible Body, was ‘as an emergency measure to give a period of calm and rethinking’.  This is not a statutory basis for the exclusion of a child (the only statutory bases are those provided in regulation 4 of the Schools General (Scotland) Regulations 1975) (SI1975/1135)). Given that Parliament has prescribed that exclusions may only be based on certain statutory grounds, an exclusion which is not justifiable on those grounds is, by definition, unlawful. An exclusion which is not lawfully founded cannot be said to be in pursuit of a legitimate aim. Solicitor for the responsible body in her written submission (T213-233 at T232-233) suggests that THE CHILD was excluded due to his insistence on being educated in a mainstream environment when this was not considered appropriate. This is a different basis from the one cited by Director of Education, Culture and Sport for the Responsible Body, but in any event, this could not be a justification for exclusion. Also, it is not accurate, in our view, to claim that THE CHILD (or his parents) insisted that THE CHILD is taught in mainstream classes. That is clearly what they wished to happen, but it is for the Responsible Body to provide a suitable environment for The Child education (Education (Scotland) Act 1980, s.1). THE CHILD attended school on 22^nd October 2013, as required. It was for the Responsible Body to educate THE CHILD, which they declined to do when they excluded him. Any other interpretation of the situation is, in our view, incorrect.

 

77. Furthermore, the Responsible Body appears to have based its decision to exclude partly on a need for ‘rethinking’. We assume that this refers to rethinking around how, at this point, to best provide for The Child education. This is not a valid basis for a decision to exclude a child.

 

78. The third exclusion of THE CHILD appears to arise directly from the Responsible Body’s inability to provide THE CHILD with an adequate education at his own school upon his return there on 22^nd October 2013. As we note above, one of the Responsible Body’s duties is to provide such an education. It appears to us that the Responsible Body, finding itself in this situation, resorted to apparently punishing THE CHILD for not complying with advice in circumstances where it felt unable to meet its own statutory obligations.

 

79. It appears that the Responsible Body (via Director of Education, Culture and Sport for the Responsible Body’s letter of 21^st November 2013) sought to justify the exclusion, in response to a complaint, on a ground which is not a statutory one.  In other words, the Responsible Body, having made an error in unlawfully excluding THE CHILD, sought to justify this error.

 

80. The exclusion of THE CHILD for ten days can only have been detrimental to his education, an education which had already been disrupted by his placement in the base.

 

81. Given that all of the conditions in s.19(2) have been met, the Responsible Body discriminated indirectly against THE CHILD when it excluded him from school on 22^nd October 2013.

 

(c) The third exclusion - discrimination arising from a disability

 

82. The next question to consider is: did the Responsible Body, by excluding THE CHILD, act in such a way as to amount to discrimination arising from disability in terms of s.15 of the 2010 Act causing a breach of s.85(2)(e)? In our view, the answer to this question is in the affirmative.

 

83. We will follow the required two stage process as above for the first and second exclusions.

 

Stage 1: did the Responsible Body treat THE CHILD unfavourably because of something arising in consequence of his disability?

 

84. In our view, the answer to the Stage 1 question is in the affirmative.  In relation to this provision, the use of a comparator is not appropriate. Again, we refer to the discussion of the comparator in the context of s.15 earlier. Exclusion of a child amounts to unfavourable treatment. It is clear here that this treatment arose because of something in consequence of his disability. The Responsible Body decided that certain work was required to the base in which THE CHILD was being educated and that an alternative placement was necessary. The need to educate THE CHILD in the base arose following concerns that THE CHILD could no longer be educated in mainstream classes due to his behaviour. That behaviour, for reasons already indicated, is contributed to by his disability. There is a clear causal chain, then, linking The Child disability and the exclusion.

 

Stage 2: can the Responsible Body show that the treatment is a proportionate means of achieving a legitimate aim?

 

85. We answer this question in the negative.  We refer to our reasoning above employed in relation to a similarly worded test in s.19(2)(d) of the 2010 Act. The treatment (the exclusion) was neither a means of achieving a legitimate aim, nor was it proportionate.

 

86. In conclusion, then, we are satisfied that in deciding to exclude THE CHILD on 22nd October 2013, there occurred indirect discrimination and discrimination arising from disability.

 

 

The education of THE CHILD for a period (2^nd September 2013 - 11^th November 2013) outwith mainstream classes

 

87. The decision to remove THE CHILD from mainstream classes and educate him on his own, in a Support for Learning Base (‘the base’) in the school on a full time but temporary basis, was taken following a Child Plan Review meeting held on 30^th August 2013. A revised minute of that meeting is at T169-172. That minute was prepared by Witness G. Concerns were raised at that meeting on behalf of members of teaching staff around the impact that The Child behaviour might have on their safety and well-being (see T170, 2^nd paragraph).  Following that meeting, The Area Education Manager, (who attended the meeting) decided that THE CHILD should be educated outwith mainstream education for a period. At around the beginning of August 2013 (shortly after the meeting) Witness G approached Witness H (who at that point was managing a unit within another High School) and asked him to attend School A to supervise The Child education within the base. As Witness H notes in his statement, he saw his role as:

 

          “..to build a relationship with [THE CHILD] and get him back into mainstream education.” (T148)

 

88. THE CHILD remained in the support for learning base until 11^th November 2013, when his re-introduction to mainstream classes commenced. The period that THE CHILD spent solely in the base (2^nd September 2013-10^th November 2013) was interrupted from 7^th October 2013 - 5^th November 2013, firstly by the school holidays (7^th October 2013 - 21^st October 2013) followed immediately by the ten day exclusion (exclusion 3: 22^nd October 2013 - 5^th November 2013). From 5^th – 10^th November, THE CHILD returned to the base.

 

(a) The period in the base – direct discrimination

 

89. The first question to consider is: was THE CHILD directly discriminated against by the Responsible Body under s.13 of the 2010 Act, in such a way as to breach their duty under s.85(2)(a) of the 2010 Act? (relating to the provision of education). The Claimant does not argue that this did happen (s.13 is not mentioned in the Claimant’s submissions). However, for the sake of completeness, we will deal with this possibility.

 

90. We refer to the discussion above of the relevance of a ‘comparator’. We are not satisfied, on a prima facie basis, that a person who does not have a disability would have been treated less favourably to THE CHILD. It is clear to us that the main driver for the decision to remove THE CHILD from mainstream education was concerns expressed by staff members for their safety (and the safety of THE CHILD and other pupils) if THE CHILD was to continue to be educated in mainstream classes, and exhibit challenging behaviour. Those concerns were relayed to the Headmaster during the meeting on 30^th August 2013 (T169-172 at 170). Witness G in his evidence spoke of staff concerns for their safety as well as that of The Child and other pupils. Witness F, then Depute Headteacher, also gave evidence of serious staff concerns around The Child behaviour in class. In her written statement refers to concerns about The Child ability to be taught in mainstream classes (T178-181 at 180). She provided the Tribunal with a log of meetings and incidents relating to THE CHILD (T158-164). These incidents and meetings are logged from shortly after THE CHILD stated at School A (the first being on 13^th September 2011) through until just before the meeting on 30^th August 2013. She refers to a period from May 2013 until the end of term in June 2013 when The Child behaviour was regarded as ‘very challenging’ (T180). In considering the log of incidents from 10^th June 2013 (T162) through until the final recorded incident there on 28^th August 2013 (T164), we take the view that The Child behaviour over this period had reasonably become a matter for serious concern. We should add that the Claimant accepts some of the entries in the log of incidents at T158-164 as accurate while not accepting others (see the brief responses to each entry at T206-208, provided by the Claimant). However, for the most part, the non-acceptance of the incidents is related to them not being included in the school-home diary. For most of these incidents, the Claimant did not present contrary evidence. It is extremely unlikely that very specific allegations such as those recorded in the incident log were fabricated. In the absence of evidence to the contrary, we are prepared to accept that those incidents occurred. In our view, the number of incidents logged there began to increase significantly from early June through until the end of August 2013.

 

91. Were someone who does not have a disability to behave in such a way, in our view, it is highly likely that such a pupil would have been excluded from school. The incidents demonstrate challenging behaviour occurring across a number of months, in different settings (both in the classroom and in the playground) affecting a number of staff members and some pupils. In these circumstances, we cannot say that THE CHILD was treated less favourably than a non-disabled pupil when the decision was made to take him out of mainstream classes.

 

92. In our view, then, direct discrimination did not take place in the decision to remove THE CHILD from mainstream classes and educate him in the base. The same conclusion applies to the period spent by THE CHILD in the base: since similar behaviour from a pupil without a disability would have most likely led to the pupil’s exclusion, the provision to THE CHILD of some level of education, over a continuous period while in the base (save for the third exclusion, dealt with above) represents more favourable treatment of THE CHILD than his comparator.

 

(b) The period in the base – indirect discrimination

 

93. The next question is: was THE CHILD indirectly discriminated against under 19 of the 2010 Act, due to the decision to take him out of mainstream classes and educate him in the base, causing a breach of s.85(2)(a)? We would answer that question in the negative.

 

94. In our view, the practice which was applied here was the practice of providing education outwith mainstream classes where a pupil’s behaviour was such that education in mainstream classes was not thought to be feasible for the safety of staff and pupils. We are not persuaded that the Responsible Body would have applied this practice to pupils who do not have a disability. In our view, as stated above, special arrangements such as those made for The Child education would not have been made for a child who did not have a disability; such a child would have been disciplined, and excluded. In fact, as discussed above, THE CHILD himself was excluded twice following episodes of challenging behaviour.  This means that the condition in s.19(2)(a) of the 2010 Act is not met, since the practice in question would not have been applied to a non-disabled child.

 

95. We need not consider the other parts of s.19(2) since all require to be met in order for indirect discrimination to arise.

 

(c) The period in the base– discrimination arising from a disability

 

96. The next question to consider is: did the Responsible Body, due to and following the decision to take THE CHILD out of mainstream classes and educate him in the base, act in such a way as to amount to discrimination arising from disability in terms of s.15 of the 2010 Act, causing a breach of s.85(2)(a)? In our view, the answer to this question is in the affirmative.

 

97. We will follow the required two stage process as above for the first exclusion.

 

Stage 1: did the Responsible Body treat THE CHILD unfavourably because of something arising in consequence of his disability?

 

98. In our view, the answer to the Stage 1 question is in the affirmative.  In relation to this provision, the use of a comparator is not appropriate. Again, we refer to the discussion of the comparator in the context of s.15 earlier.

 

99. The decision to remove of a child from mainstream education and educate him on his own represents unfavourable treatment, since it deprives a child of the company of his peers and the interactivity of the classroom environment. Indeed, THE CHILD indicated in his evidence that he viewed lack of peer access as a negative aspect of his period in the base.  It is clear that the treatment in question arose because of something in consequence of The Child disability. As noted above, The Child challenging behaviour in class was influenced by his disability. There are numerous references in the minutes of the meeting of 30^th August 2013 to The Child Asperger’s and the need to have strategies in place to deal with the stress caused to THE CHILD by the classroom environment. There is sufficient evidence to allow us to infer that the removal of THE CHILD from mainstream classes arose in consequence of his disability.

 

Stage 2: can the Responsible Body show that the treatment is a proportionate means of achieving a legitimate aim?

 

100. We would answer this question in the negative. In considering the means of achieving the aim, we are evaluating (i) the original decision to place him there as well as (ii) the period spent by THE CHILD in the base. It is easiest if we deal with each in turn, leading to a conclusion on discrimination in respect of each.

 

(i) Decision to place THE CHILD in the base

 

101. In our view, this decision does not represent a proportionate means of achieving a legitimate aim. The legitimate aim in question is the making of a fair, procedurally sound decision on the future education of THE CHILD, following consultation with all relevant persons.

 

102. It seems to us that the decision which was made was procedurally flawed and made in a rushed manner. As a result, there was no time for reflection on the alternative options or to properly plan the period in the base. We can understand that the professionals involved were under a degree of pressure to resolve a very difficult situation as quickly as possible, but we are not convinced that the decision to place THE CHILD in the base on a full time basis, from 2^nd September 2013, was made in a proportionate manner.

 

103. The option of a complete removal of THE CHILD from mainstream education (albeit for a period of time) was not, it appears, discussed at the meeting of 30^th August 2013. This is important, since THE CHILD was present (although not for the whole meeting) and The Child parents were there, along with other significant professionals. No mention appears to have been made of the possibility of a temporary, full time removal of THE CHILD to the base. The Child parents’ views were, it seems, not taken on such a proposal. That applies to the other professionals at that meeting. Significantly, the views of Witness I were not taken in advance of the decision to remove THE CHILD completely from mainstream classes. Witness I in his oral evidence confirmed that The Area Education Manager contacted him after the meeting to advise that the decision had been made. Witness I indicates in his written statement that he cannot provide a view on the removal (T156), since he does not have the full information, but it seems to us that he should have been consulted on this proposal, as should the other professionals as well as The Child parents and THE CHILD himself. Indeed, there was no specific action agreed at the meeting (see the minute at T172, which does not record a final outcome on the ‘Options’).  It seems to us wrong in principle that a decision of this nature was taken outside the formal meeting to discuss future steps. We note that the decision was taken the following day, and was intimated to The Child parents by e-mail (see The Area Education Manager’s e-mail of 31^st August 2013 at A21, and duplicated at A31). The Headteacher’s response, of 2^nd September 2013, can be found at A33. The points made by Witness C, Advocacy Worker in her e-mail of 11^th September 2013 (A34) demonstrate that there was some confusion on the part of The Child parents as to the outcome of the meeting.

 

104. In our view, the proportionality of the decision taken on 31^st August 2013, as a means to secure the legitimate aim mentioned above, is influenced by a number of factors:

 

(a) The option of THE CHILD spending only part of the school week in the base was discussed at the meeting but there was no conclusion reached. That option was removed by the decision taken and intimated the following day. This is significant in the context of Witness H’s evidence that some of The Child teachers did not think his behaviour in class was problematic. This suggests to us that a more finessed approach, whereby THE CHILD could spend time in mainstream classes for some subjects, was an option which was not properly explored. We note that this option was countenanced by the Headteacher, while doubting that it could be put in place for 2^nd September; he suggested that The Area Education Manager should meet with his staff (we infer here that such a meeting would have been to discuss this option) but The Area Education Manager indicated that such a meeting would not be possible within that timescale due to other commitments (see T172). It is not clear to us why that option had to be ruled out by 31^st August 2013.

 

(b) The minute of the meeting of 30^th August 2013 suggests that the professionals ran out of time to reach a conclusion. In our view, the sensible approach would have been to organize a further meeting (at short notice) to continue the discussions in order that the relevant professionals could reach a conclusion together. The taking of a decision the following day lends weight to our impression of a rushed decision-making process.

 

(c) The decision by The Area Education Manager was made outwith meeting and in absence of consultation of any of meeting participants, and in this respect was, in our view, procedurally flawed. It seems to us that there was little point in the meeting of 30^th August taking place if, in the absence of reaching a conclusion on future action, an option not explored there was imposed unilaterally by The Area Education Manager the following day.

 

(d) The manner in which the decision was taken left no time or space for THE CHILD to be prepared for a significant change in his educational environment. It is clear throughout the planning documentation for THE CHILD in the bundle that his disability means that he has difficulties in adapting to new educational environments. For example, in the ASN plan of January 2013, the following statement appears:

 

“[THE CHILD] requires detailed planning and preparation prior to going to any new environments. Unpredictable events can cause anxiety and stress.” (R365 under ‘New tasks and new environments’.).

 

 A similar statement appears repeatedly in The Child Child Plans. It seems to us that THE CHILD will have had very little notice of a significant change in his educational environment. His parents were informed of this change on the evening of 31^st August 2013 (Saturday), with the move into the base on a full time basis taking place on the next school day (Monday 2^nd September 2013). This lack of notice is compounded by the fact that the decision was intimated at the weekend, meaning that there was no opportunity for professional input between the intimation of the decision and its implementation. Witness H indicated in his evidence that THE CHILD was distressed due to the absence of a plan for his period in the base. The way in which the decision was taken and implemented meant that the development and intimation of such a plan was impossible.

 

(e) The decision making process left no time prior to The Child move into the base to make preparations and plans for the teaching that he would receive there. There was no planning opportunity to enable the likely period in the base to be estimated.  Witness H was brought into supervise THE CHILD in the base at short notice. He referred to a lack of planning around the work to be carried out in the base, and how this had a negative impact on THE CHILD.

 

105. Taking all of this together, the manner in which the decision was made did not, in our view, represent a proportionate means of securing a legitimate aim.

 

(ii) Provision in the base

 

106. Turning away from the mechanics of the decision and considering the time spent in the base, it is clear that the legitimate aim here was the provision of an adequate education for THE CHILD outwith mainstream classes.  In our view, the proportionality of the educational provision in the base, as a means to secure this legitimate aim, is influenced by a number of factors:

 

(a) Witness H gave evidence that THE CHILD benefitted from around 4-5 hours of tuition from his mainstream class teachers per week. He also received work to carry out while in the base being supervised by Witness H, as well as tuition and work from Witness H. While we note that Witness I states that the provision for THE CHILD once in the base was adequate (T156), in his oral evidence he was unable to confirm the detail of that provision. It seems to us that 4-5 hours per week of regular teacher-pupil contact for THE CHILD is much lower than THE CHILD would normally receive. This situation persisted for a number of weeks. In our view, efforts should have been made to increase the regular pupil-teacher contact for THE CHILD, either by allowing THE CHILD to attend some mainstream classes (where The Child behaviour had not been a problem) or by organizing more contact in the base between THE CHILD and his regular teachers. It might also have been possible to consider bringing in other teachers from outwith the school within certain subject areas to work with THE CHILD in the base. It seems to us that if THE CHILD were permitted to spend some time in mainstream classes during the base period, Witness H could have assisted in the task of supervising THE CHILD, providing some continuity between the base and mainstream class provision. Such arrangements would have carried the advantage of making The Child re-integration into mainstream classes less likely to be problematic. Of course, we are unable to speculate about whether such arrangements would have been feasible. However, what is clear from the evidence is that such (or other) measures were not contemplated by the Responsible Body. This is clear from the note of the meeting of 30^th August 2013 (T169-172). In essence, in our view, there was a lack of creative thinking around how THE CHILD could best be educated in a way which would maintain a low risk of disruptive behaviour.

 

(b) During his period in the base, THE CHILD was denied any access to the school library. In our view, access to books is a key component of the learning experience. There was evidence of frustration on the part of THE CHILD at spending so much time in the base room with Witness H, and Witness H indicated that he experienced frustration at the arrangement too. Such frustration is not surprising. Regular visits for THE CHILD to the library would have been educationally valuable, both in the direct sense of exposing THE CHILD to additional learning resources, but also in the sense of providing a change of scene for THE CHILD and Witness H. The Responsible Body has conceded that this treatment of THE CHILD might be regarded as discriminatory (see the submissions at T226).

 

(c) Turning to the lack of access for THE CHILD to his peers during break times, again, the responsible body concedes that this practice may be discriminatory (T226). It is clear to us that access to peer contact for recreational and socialisation purposes during the school day is beneficial to any child. Such access would have provided THE CHILD with a break from spending long periods of time in the base room with Witness H, which would have been beneficial for both of them. While we accept that The Child behaviour was, on some occasions, aimed at other pupils, the log of incidents (T158-164) does not paint a picture of particular problems during breaktimes. In any event, supervision of THE CHILD during breaktimes would have been possible (from Witness H or other support for learning staff).

 

107. In essence, we view the period THE CHILD spent in the base as a period of containment with insufficient educational support. Taking all of the above together, the provision of the education for THE CHILD in the base was not a proportionate means of securing the legitimate aim of that provision in the sense that it was not adequate.

 

108. In conclusion, then, we are satisfied that discrimination arising from disability arose in respect of (1) the decision (taken on 31^st August 2013) to remove THE CHILD from mainstream education and to educate him in the school’s support for learning base; and (2) the provision of education for THE CHILD in the base.

 

 

Reasonable adjustments

 

109. A duty to make reasonable adjustments applies to the Responsible Body in relation to each of the four issues considered above (the three exclusions: s. 85(6) and 85(2)(e) of the 2010 Act; and the decision to place THE CHILD in the base: s.85(6) and 85 (2)(a) of the 2010 Act). Each of these issues fall within the ‘provision of education’ in Schedule 13, paragraph 2(4)(b) of the 2010 Act. The content of that duty is described in s.20 of the 2010 Act. Only the first requirement, as outlined in s.20(3) applies in this case (as applied in Schedule 13, paragraph 2(2) of the 2010 Act). That requirement is that where a provision, criterion or practice of the Responsible Body puts THE CHILD at a substantial disadvantage in relation to his disability in comparison with non-disabled pupils, the Responsible Body must take reasonable steps to avoid that disadvantage.

 

110. We take the view that the duty to take such reasonable steps (we will call these ‘reasonable adjustments’) is a separate free-standing duty from the duties to avoid direct discrimination, indirect discrimination and discrimination arising from a disability. In other words, the making of reasonable adjustments is not a ‘defence’ to an allegation of any of these three forms of discrimination; it is technically unconnected with those discrimination-types. It is clear from s.21(2) of the 2010 Act that any failure to follow the s.20 duty to make reasonable adjustments amounts to discrimination.

 

111. In our view, although each of the three exclusions represent a practice (as described above in relation to each in considering indirect discrimination) which placed THE CHILD at a substantial disadvantage compared to non-disabled pupils;  however, we cannot detect, from the evidence we have, any reasonable adjustments to avoid that disadvantage that might have been made by the Responsible Body. Although we have a concern about the exclusions policy (see below), that policy does provide an adequate framework for decision-making on exclusions such that the presence of such a policy represents reasonable steps to avoid substantial disadvantage to THE CHILD likely to be caused by behaviour (and therefore disability-related) exclusions.

 

112. In relation to the decision to place THE CHILD in the base, and his time spent in the base, in our view the measures which would have made the treatment of THE CHILD on this matter proportionate suggested above are such steps (adjustments) as it would have been reasonable to take to avoid substantial disadvantage to THE CHILD (the steps suggested in paragraphs 104-106 above). The disadvantage we have in mind is the inadequate educational provision made in the base due to the decision making process and the provision in the base itself (all as outlined above). It is clear that a disadvantage to THE CHILD of not providing adequate educational provision is substantial, in the context of The Child educational difficulties, and given the period of time spent in the base. Those steps identified above are reasonable, and would have avoided the substantial disadvantage. Those steps were not taken, and so we conclude that in this respect, the Responsible Body failed to comply with its duty to make reasonable adjustments, and therefore discriminated against THE CHILD under s. 21(2) of the 2010 Act.

 

 

Other issues relevant to our decision

 

113. There are a number of other matters raised in this case which, for convenience, are dealt with together.

 

‘Differential discipline’

 

114. This is dealt with by Solicitor for the claimant in his written submission of 7^th August 2014, page 1. In essence, he alleges that THE CHILD was not treated equally by the Responsible Body in matters of discipline for challenging behaviour in class. Two specific examples are provided. We accept that THE CHILD felt (as he made clear in his evidence to us) that he was being treated unequally in comparison with other pupils in the administration of discipline, but we are not satisfied, on the evidence we heard, that a different approach was taken to disciplining THE CHILD compared to other pupils. It seems to us that the behaviour referred to in the first of Solicitor for the claimant’s examples is not broadly equivalent: he compares the pulling down of trousers with swearing. It is not clear, on the face of it, which of these actions deserves more severe punishment. They are entirely different in character. Further, in our view, the administration of discipline is very context-specific; much depends on how each incident occurs, and on the history of the conduct of the pupil in question (recent and otherwise).

 

115. On the second example, this is a reference to disciplining arising out of two punching incidents. The reference appears to be to the second exclusion. The Child position in his evidence was that he did not punch the other pupil, and so it is surprising to find Solicitor for the claimant relying on such a comparison. Even if we were satisfied that THE CHILD had punched the other pupil (and we do not feel we require to form a concluded view on this point - see paragraphs 47- 48, above) again, the context of such behaviour is important. Further, we have criticised the Responsible Body’s decision to exclude THE CHILD for the second time. Further, their case for exclusion was not based solely on the allegation of a punch; it was based on this and other alleged behaviour by THE CHILD both within the class and in the corridor outside. This makes the comparison between the two incidents urged upon us (both involving a single punch) an unreliable comparison.

 

116. We could not detect any other evidence (other than these two comparisons) which would lend weight to an allegation of unequal (and detrimental) treatment of THE CHILD in disciplinary measures taken against him.

 

117. For these reasons, we do not think that there is a ‘differential discipline’ aspect to this case.

 

Prejudice and discrimination based on health

 

118. This is the heading for some points made by Solicitor for the claimant in his submissions of 7^th August 2014, page 2 (T210). We do not understand Solicitor for the claimant to be advancing a form of discrimination which we have not already dealt with, and the points made there are, where relevant, considered above.

 

Harassment

 

119. Solicitor for the claimant suggests in his submission of 7^th August 2014, page 3 (T211) that the Responsible Body has engaged in the prohibited conduct of harassment, contrary to s.26 of the 2010 Act. We disagree. There is a duty on the Responsible Body to avoid harassment of THE CHILD (the relevant provision in this case being s.85(3)(a)). The only conceivable basis for such an allegation in this case would be a breach of s.26(1) of the 2010 Act, the other s.26 provisions being inapplicable. That provision makes unwanted conduct by the Responsible Body, where related to The Child disability, unlawful where that conduct has the purpose or effect of violating The Child dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for THE CHILD. Solicitor for the claimant does not specify which of the branches of s.26(1) he relies upon, nor does he specify which of the purposes/effects listed in s.26(1)(b) he seeks to rely upon. His submission on the application of s.26 is not as clear as it might be. However, we can take from his submission the factors he relies upon that might, in theory, lead to a finding of harassment. We should add that the burden of establishing a harassment allegation is on the Claimant, on a prima facie basis (bearing in mind the burden of proof – see s.136 of the 2010 Act and the comments on that burden above at paragraph 24 above).

 

120. The conduct that Solicitor for the claimant relies upon consists of an allegation of animosity from the Responsible Body towards THE CHILD in taking the decision to exclude THE CHILD for the third time. This animosity, it is claimed, was contributed to by the General Teaching Council referrals made by the Claimant in respect of staff members and by the s.70 complaint by the Claimant. If we were satisfied that such a motivation for the third exclusion existed, this might amount to harassment under s.26. However, there is no evidence to support such a motivation. We accept that the Responsible Body felt under pressure at the time of the third exclusion, and it is clear from the evidence of a number of witnesses that this pressure was contributed to by the complaints against the staff and school made by the Claimant. As Solicitor for the claimant points out in his submissions, Witness E makes reference to the school being under a magnifying glass at around the time of the complaints. Further, it is clear, as Solicitor for the claimant points out, that the Claimant had been banned from the school grounds on account of an alleged threat made against an independent assessor. However, we can find no evidence of (or from which we may infer) a feeling of animosity by the Responsible Body toward THE CHILD, or of any feeling of ill-will towards him. In fact, from the evidence, we gain the strong impression that, despite some mistakes being made, the school staff had The Child best interests at heart throughout the period in question. As we indicate above, the third exclusion was unlawful, but we take the view that, at worst, that decision to exclude represents a measure taken in haste when faced with a difficult situation. Going back to the definition of harassment in s. 26(1), we are not persuaded that the purpose or effect of that decision satisfies any part of s.26(1)(b). The motivation relates to purpose. On effect, we do not feel that s.26(1)(b) is triggered either. There is no doubt that the decision to exclude in question was detrimental to The Child continuing education, but we cannot say that it had the effect of violating his dignity or of creating one of the environments listed in s.26(1)(b). Even The Child evidence does not support such an interpretation. In reaching this view, we are mindful of the need to take into account the matters listed in s.26(4).

 

Victimisation

 

121. Solicitor for the claimant seeks to persuade us to make a finding of victimisation, under s.27 of the 2010 Act. We decline to do so. The impact of s.27 is explained in the Explanatory Notes to the 2010 Act at paragraph 100:

 

“[s.27] provides that victimisation takes place where one person treats another badly because he or she in good faith has done a “protected act”, for example taken or supported any action taken for the purpose of the Act, including in relation to any alleged breach of its provisions. It also provides that victimisation takes place where one person treats another badly because he or she is suspected of having done this or of intending to do this.”  

 

122. There is a duty on the Responsible Body to avoid victimisation (the potentially relevant provisions in this case being s.85(5)(a), (e) and (f)). In order for such an allegation to be made out on a prima facie basis (bearing in mind the burden of proof – see s.136 of the 2010 Act and the comments on that burden above at paragraph 24, above), the Responsible Body would have to have subjected THE CHILD to a detriment by doing (or potentially doing) a protected act (s.27(1)). Protected acts are defined under s.27(2), and are, in broad terms, acts related to the Equality Act 2010. Taking into account s.27(5) too, it is clear that victimisation could only occur if some action had been taken by the Responsible Body in response to proceedings, allegations, evidence or other action taken by the THE CHILD in connection with these proceedings. The suggestion here is that the Responsible Body ‘retaliated’ against THE CHILD in response to the Claimant raising these proceedings. Solicitor for the claimant makes reference, in relation to s.27, to the first exclusion, suggesting that this occurred in retaliation to complaints made by THE CHILD. Firstly, there is no basis in the evidence for such a suggestion. Secondly, even if there were, such retaliatory conduct would not be caught by s.27 since at the time of the first exclusion, there is no evidence of any mention of the 2010 Act, by THE CHILD or anyone else. Indeed, the 2010 Act is mentioned for the first time after all four of the issues examined above (the three exclusions and the placement in the base) have happened. Further, the Claimant suggests that the victimisation which he claims has occurred was contributed to by the decision of the Responsible Body to prohibit him (the Claimant) from entering the grounds of any school within the Responsible Body’s area. This exclusion followed an allegation that the Claimant threatened an independent educational assessor appointed by the Responsible Body to consider The Child education. In our view, any dispute on this matter between the Claimant and the Responsible Body is not a matter for us to consider, since it is not a matter directly relevant to discrimination against THE CHILD. We decline, then, to reach a view on this matter.

 

123. In these circumstances, there is no substance to the Claimant’s s.27 argument.

 

 

F. Remedies

 

124. We have wide powers in relation to remedies: we may make any such order as we think fit, except that we may not order the payment of compensation (Schedule 17 of the 2010 Act, paragraphs 9(2) and 9(3)(b)). There is no detailed guidance on the purpose of the remedies, but there is an indication of what Parliament intends in Schedule 17, paragraph 9(3)(a):

 

“[the power to make any seen fit]..may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person of any matter to which the claim relates.”

 

125. We have this purpose in mind in considering the appropriate remedies in this case.

 

1. Declarators

 

126. We make the following declarators of discrimination:

 

(1) In excluding THE CHILD from school on 28^th September 2012, the Responsible Body contravened its duty to avoid indirect discrimination (as defined in s.19 of the 2010 Act), contrary to s. 85(2)(e) of the 2010 Act.

 

(2) In excluding THE CHILD from school on 28^th September 2012, the Responsible Body contravened its duty to avoid discrimination arising from disability (as defined in s.15 of the 2010 Act), contrary to s. 85(2)(e) of the 2010 Act.

 

(3) In excluding THE CHILD from school on 2^nd May 2013, the Responsible Body contravened its duty to avoid indirect discrimination (as defined in s.19 of the 2010 Act), contrary to s. 85(2)(e) of the 2010 Act.

 

(4) In excluding THE CHILD from school on 2^nd May 2013, the Responsible Body contravened its duty to avoid discrimination arising from disability (as defined in s.15 of the 2010 Act), contrary to s. 85(2)(e) of the 2010 Act.

 

(5) In excluding THE CHILD from school on 22^nd October 2013, the Responsible Body contravened its duty to avoid indirect discrimination (as defined in s.19 of the 2010 Act), contrary to s. 85(2)(e) of the 2010 Act.

 

(6) In excluding THE CHILD from school on 22nd October 2013, the Responsible Body contravened its duty to avoid discrimination arising from disability (as defined in s.15 of the 2010 Act), contrary to s. 85(2)(e) of the 2010 Act.

 

(7) The Responsible Body contravened its duty to avoid discrimination arising from disability (as defined in s.15 of the 2010 Act), contrary to s. 85(2)(a) of the 2010 Act, in circumstances in which the decision, taken on 31^st August 2013, to remove THE CHILD from mainstream education and to educate him in the school’s support for learning base, occurred.

 

(8) The Responsible Body contravened its duty to avoid discrimination arising from disability (as defined in s.15 of the 2010 Act), contrary to s. 85(2)(a) of the 2010 Act, in the circumstances of its decision to remove THE CHILD from mainstream education and the provision of education for THE CHILD in the base from 2^nd September 2013 until 11^th November 2013.

 

(9) In the circumstances in which (a) the decision, taken on 31^st August 2013, to remove THE CHILD from mainstream education and to educate him in the school’s support for learning base and (b) The Child education in the base was delivered, the Responsible Body failed to comply with its duty to make reasonable adjustments, and therefore discriminated against THE CHILD under s. 21(2).

 

 

 

 

2. Removal of the second exclusion from The Child record

 

127. The Responsible Body is ordered to remove all reference to the exclusion of 2^nd May 2013 from The Child educational or other records held by the Responsible Body.

 

128. This order follows from our declarations in paragraph 126(3) and (4) above. Similar removals have already taken place in respect of the other two exclusions, and so we see no need to order that this happens.

 

3. Apology letter

 

129. We order the Responsible Body to issue a full, detailed and unreserved letter of apology to THE CHILD and his parents, making reference to each of the five issues in respect of which discrimination in has occurred (the three exclusions, and two issues in respect of the base provision). There is no need to address all nine of the instances mentioned in paragraph 126 above. While it is perfectly competent (and appropriate) for us to make a finding of more than one type of discrimination in respect of each incident (the discrimination types in the 2010 Act found to have occurred here not being alternatives to each other, and being differently), the apology need only address each incident.  This letter should be issued within 28 days of the release of this decision and a copy must be submitted to the Tribunal.

 

130. Finally, the Claimant seeks a further remedy, that is to order the Responsible Body to ensure that the school properly implements the care plan and adjusts the risk assessment to properly address The Child needs (see the submission at T211, final sentence). We decline to make such an order, since it is clear to us that The Child education is being adequately provided for now, and the current care plan (T186-205) is sensible and proportionate. No evidence to contradict this is available.

 

G. Other comments

 

131. We would like to conclude by making some comments which are designed to assist the parties for the future. These comments are not part of our formal decision.

 

Staff training

 

132. We have some reservations about the level of training which staff at School A have received in relation to how to deal with pupils with Autism Spectrum Disorder. It seems to us that the school initially struggled to deal with THE CHILD and that training was put in place late in the day. We hope that the Responsible Body closely considers whether further training is required at School A (or indeed at other schools within its control) since adequate training is a key component of a school’s complement of efforts in educating children with ASN.

 

Exclusion policy

 

133. The Responsible Body’s policy in this area is referred to above and is in the bundle at R304-327. However, we note that the following appears at R308, paragraph 2.1:

 

          “The school should set out the circumstances in which exclusion will be considered…”

 

134. There is no evidence to suggest that this has been done. The notion of schools setting out separate such circumstances could, it seems to us, lead to uneven implementation of the policy from school to school, but it is clear from the document as presently framed that schools should provide such detail. Presumably, that information would be available to all teachers, parents and pupils. Any comment on whether or not such information would have made any difference to how the Responsible Body reacted in the case of each of The Child exclusions is speculative. However, in theory, such guidance might have been of assistance, and will certainly be of assistance in future cases. We note that the circumstances to be set out are those in which exclusion will be considered.

 

Current provision for THE CHILD

 

135. As we noted near the beginning of our decision, we are tasked purely with considering what has happened to THE CHILD in the past. We are not considering his current educational provision. However, we would note here that THE CHILD seems to be being provided with a good education at School A. His care plan is detailed, and it is clear from the evidence of a number of witnesses (Witness F, Witness E, Witness G, Witness H, and from THE CHILD and his parents) that THE CHILD is much happier at school now. He appears to be doing well. We should also add that while mistakes have been made, we have no doubt that the staff at School A have always had the best interests of THE CHILD in mind in making the various decisions we have, with the benefit of hindsight, been examining.

 

Relationship between the parties

 

136. A feature of this case has been the relationship between The Child parents and the staff at School A. This relationship has not always been a smooth one. Indeed, it seems to us that the poor relationship between The Child parents and the school has impacted negatively on The Child education. It is not for us to explore this in any detail. However, we hope that this decision can act as a means for drawing a line under any ill feeling that has previously existed. In our view, it is time to move on and to concentrate on the positive relationship THE CHILD has with the school. Dwelling on the past is unlikely to improve The Child education.