DE
Gender: Male
Aged: 7
Type of Reference: Another Issue
1. Preliminary Matters:
The Claimant had lodged a production, “Diabetes Management in Schools” late. There was no objection to this. We therefore allowed these papers to be lodged. These papers became C69 to 77 in the papers. The Responsible Body (hereinafter “RB”) sought to lodge a copy of their revised “Policy for Supporting Children and Young People with Diabetes in Education”. There was no objection to this and we allowed these papers to be lodged. They became R406-416. They also sought to lodge and rely upon an affidavit of Head teacher at School A. She was unable to attend in person as she is recovering from major surgery. There was no objection to this. The affidavit became R417- 427.
The oral hearing then proceeded over two days, being 17th and 18th June 2013.
The Claimant led evidence from herself, Witness A, Witness B and Witness C. The RB led evidence from Witness D and Witness E. The evidence from each was, as follows:
The Appellant
The Appellant is the mother of the child. He is a pupil at School A. She gave evidence that he was diagnosed with diabetes when he was aged three, at the end of April 2009. his diabetes is controlled by multiple injections of insulin. These normally take place, twice in the morning, one at lunch time and one at dinner time. In addition other injections can be necessary depending upon what he has eaten. As the school cannot change his insulin prescription to accommodate alterations in diet his school consumption of food cannot be varied; the carbohydrates within it are precisely calculated at 45 grammes. The Appellant gave evidence about the regime for the administration of insulin. She advised it took approximately ten minutes. The Appellant gave evidence about the symptoms of a hypoglycaemic attack and a hyperglycaemic attack. She explained that if or when he displayed any of these symptoms in school his blood should be tested and remedial action taken depending on the results.
The Appellant gave evidence that there were first difficulties in relation to his schooling during the Summer holidays before he went into P1. At that time she was told that the volunteers who had come forward to inject his insulin had withdrawn. The Appellant sought assistance from her local MSP and he sent some emails at that time. Four volunteers were found by the school in time for him to commence p1 and were trained to administer his insulin. They were the Depute Head, Witness A who ended up being his P1 teacher, XX and YY. The lead person was Depute Head.
For the majority of Primary 1 things in relation to his diabetes went very well. He was happy and teachers appeared to be happy. There was one occasion when a teacher gave him a carton of fruit juice. This was a supply teacher who was unaware of his diabetes. The RB sent a letter of apology (R13 and R14).
When he progressed to P2 the Deputy Head, had left the school. This meant that there was no lead person in relation to the child. In addition his P2 teacher, P2 teacher, was not one of the volunteers. The Appellant gave evidence that on 3rd September 2012 she had collected C from school. He was very distressed. He had not had time to finish a piece of work and was crying. The Appellant immediately took him to the office and got his blood testing unit. At that point Witness A and P2 teacher came along. P2 teacher asked why his blood was being tested. When The Appellant explained that she was concerned that his upset and tearful behaviour was as a result of hypo or hyperglycaemia P2 teacher indicated that she was not aware that those could be symptoms of such. This led The Appellant to be concerned that his class teacher (and indeed others within the school) were not aware of his care plan and the symptoms that low or high blood sugar could cause. The Appellant sought a meeting with the head teacher in connection with this. The meeting took place on 4th September 2012. The Appellant’s evidence was that she found Headteacher to be dismissive of her complaint. Headteacher suggested that the school could not expect to test his blood every time he had a “strop”. The Appellant’s evidence was that she left Headteacher’s office in tears and was clear that the school were not going to do anything about her concerns. As a result she contacted Witness E, the Education Officer at the RB’s Headquarters. Witness E made various investigations and The Appellant was satisfied as to the outcome of these. However, The Appellant withdrew him from school while Witness E’s investigations were carried out.
On 22nd November 2012 The Appellant telephoned Witness E again. This call was prompted by an incident on 21st November 2012. At that time he had been doing maths work in class and had an inappropriate outburst when he was halfway through the work. He threw his jotter at the teacher. When his blood was tested at lunch time it was at 18 (which was high, with above 20 being an emergency). The Appellant was concerned about this because it suggested to her that the health care plan was not being followed. As a result she telephoned Witness E to advise that the promises he had made to her previously were not being kept. There was then a period of three days in a row when he required to be treated for hypoglycaemia, having advised teachers that he felt hungry. The school liaised with The Appellant around this time and it is her position that she made no complaint about this, rather that any complaint she made was about the health care plan not being followed.
On 23rd November 2012 Witness E contacted The Appellant to advise her that the trained staff were considering withdrawing from volunteering to administer insulin to him. On 26th November he called to indicate that the staff were no longer willing to volunteer and that there was no-one to uphold his care plan. As a result he did not attend school. Thereafter there was a meeting on 10th December 2012 to suggest solutions. It was The Appellant’s evidence that she volunteered to go to the school at lunch time and check’s his blood but the school did not agree to that as there was no one to check blood sugar, should that become required at any other time. He was still off school by Christmas time. Work was being sent home but The Appellant’s evidence was that he looked upon this as a punishment and became quite frustrated. He was missing his friends, he was not attending his clubs and he developed a tic.
There was a further meeting on 21st January 2013. Various suggestions were made. The Appellant again offered to attend school and emailed thereafter (C4). As a result a solution was found and he returned to school on 30th January 2013. The arrangement was that The Appellant was to attend school to administer his insulin and Additional Support Needs Assistant (ASNA) had volunteered to carry out any blood checks that were necessary on him at other times.
On 22nd March 2013 (ASNA) went on maternity leave, the person that the RB employed to cover her leave was able to uphold the care plan and began to administer insulin to him. The trained teaching staff would check his insulin administration. The Appellant remained and remains concerned that (ASNA) or someone else would withdraw their volunteer services and that that would have a similar impact on him as happened at the end of 2012.
In cross-examination The Appellant’s evidence was that even if teacher’s thought that he had become upset for a specific reason, without checking his blood sugar you would not be able to tell if it was in fact related to his diabetes. The Appellant’s position was that she had never had a complaint about the trained staff who administered insulin to him. Her complaints were always in relation to the implementation of the care plan. She had contacted education headquarters to make a complaint on two separate occasions. There was a dialogue between them so she was in touch with Witness E frequently but she did not accept the evidence given in the Affidavit of Headteacher, which suggested that she was complaining all the time.
Finally, The Appellant gave evidence that since he has returned to school there have been no difficulties in relation to his care plan or the administration of his insulin.
Witness A
Witness A is a class teacher employed by the RB. She taught him during the period August 2011 to June 2012. She gave evidence that she had initially been reluctant to volunteer to administer insulin as she did not know what it involved. A nurse attended the school’s in-service day in August 2011 and explained the procedure. Volunteers were again sought from the staff, quite forcefully. It was explained that the RB did not want to have to exclude the child from attending school. Once Witness A completed her training she felt comfortable with the administration of insulin. The training was well delivered. It took three to four weeks. Witness A gave evidence about the procedure for the administration of insulin and that it took about ten minutes. She gave evidence that he was generally a very well behaved child and very intelligent. He was very responsible in dealing with his diabetes. Witness A felt that she had a good relationship with The Appellant. She would telephone her to ask any questions or if there were any problems.
Witness A indicated that she had withdrawn her voluntary assistance as for three days in a row she had been informed that The Appellant had spoken to Witness E at Educational Headquarters regarding issues that she had with the administration of insulin to him. She was starting to feel undermined and to lose confidence in her own abilities. She was starting to question her role and whether she could carry on. She was getting stressed and feeling that she did not want to go to work. She gave evidence that she had no idea why everything was being complained about and needed constant justification. As a result she withdrew her assistance after giving one week’s notice. Witness A agreed that he could not safely attend school without someone to administer his insulin.
Thereafter a note came around staff to ask if anyone was willing to be trained to administer insulin. Witness A was unaware of the current arrangements for him or any fall back arrangements.
In cross-examination Witness A indicated that volunteering to administer insulin was against the advice of her trade union. At the outset of her involvement she had asked the RB what the position would be if anything went wrong. They had indicated that they had an overriding indemnity for staff and that they would email that to the school. Witness A never saw that and is unsure whether it was sent. In relation to his behaviour, Witness A’s position was that his behaviour in Primary 2 was very different. P2 teacher was having issues with his attitude towards her. She would consider bad behaviour by him to be very out of character. She also understood that he was very reluctant to do work when requested by P2 teacher. For her own part Witness A felt that she could tell the difference between him pushing boundaries and suffering from an imbalance in his blood sugar levels. She gave evidence of how she could persuade him back on stream if he was avoiding a task.
On being asked about the two people involved in the administration of insulin for him, Witness A gave evidence that the role of the second person was simply to check the blood sugar reading and that the reading corresponded with the particular dose of insulin that was being administered. The checker also checked that that was the amount of insulin in the pen. It was not Witness A’s understanding that the checking person would require to be trained. The checking was something that was self explanatory.
Witness D
Witness D is an Education Officer with responsibility for Support for Learning, employed by Responsible Body. She has held that post for eight years. Prior to that she was the Head Teacher of a school for children with additional support needs. She has the functional responsibility for children with additional support needs throughout the Responsible Body. She is also line manager of six Additional Support Needs Managers. She is line manager in various other disciplines within Responsible Body. She also has pastoral responsibility for schools in the M area. Her involvement in this case related to the fact that she was line manager for the ASN manager for School A primary. However, Witness E had also retained an involvement in this case because of his pastoral responsibility for School A.
Witness D was first made aware of him when a request was made for a co-ordinated support plan whilst he was at nursery. She had no involvement again until the circumstances surrounding the current case.
Witness D gave evidence of the fact that the claimant wished to have staff contracts amended in relation to this matter so as to provide for the administration of insulin as part of their terms and conditions. She gave evidence that teacher contracts were negotiated nationally and were therefore contracts which took many months of intensive negotiations to reach. Trade unions were involved. Additional support needs assistant’s contracts were individual to each local authority, but the current standard Responsible Body contract was to have such assistants administer emergency medication only. Again, Witness D’s evidence was that these would not be easy to alter.
Witness D gave evidence that during the period of his absence from school, at the end of 2012, it became clear that the situation had reached an impasse. She spoke to personnel. There was a difficulty in finding people to approach as S, where his school is located, is geographically difficult. The fact that any assistant would take some time to be trained was another difficulty. However, personnel identified a person looking for work in the W area and she accepted work as an Additional Support Needs Assistant in School A, knowing that the administration of insulin was a requirement of the post. Witness D was not sure, but did not think that the assistant’s actual contract had been varied to include this provision and did not think she was paid extra. However, neither did she think she was administering insulin on a voluntary basis as it had been explained to her before she had taken the post that this was required of her. Witness D’s evidence was that if she was no longer prepared to administer insulin and do blood checks that she could not keep her job, as its requirements had been made clear to her at the outset, although she was not entirely clear about this and spoke of having to check the position with personnel.
Witness D gave evidence that Responsible Body were currently considering a number of new posts, called Health and Wellbeing Supervisors. Part of their remit would be the administration of medication in schools. These would be a higher paid peripatetic role, the first posts of which she understood would be advertised in August 2013. She indicated that this role was being created in response to the fact that they were seeing more children in schools, who had perhaps been born very prematurely but survived, and who needed, for example tube-feeding. Her evidence was that the new role was not being created in response to the circumstances of this case.
Finally, Witness D gave evidence that Responsible Body’s policy in relation to the administration of insulin in schools was that they would work in partnership with the NHS. The written policy document was to clarify understanding across schools and is currently in the process of being updated, but the amendments made so far don’t deal with the main aspect of this case. The policy may be amended further.
In cross-examination Witness D indicated that she could not see what could have been done to resolve the situation that arose from his absence in the short term. She disagreed that the final paragraph in an ASN’s assistant’s job description (R375) would allow a head teacher to add into their remit the administration of insulin. She was of the view that, despite the fact that there had been a withdrawal of volunteers before he had started school, and that was something that could happen again, that plans were in place for the administration of insulin and that things had progressed smoothly.
The child
The Tribunal met informally with the child. He was a pleasant, chatty child who had a clear understanding of his diabetes. He spoke about his blood testing and insulin administration. He spoke about sometimes being able to identify when he felt “different”, because of an imbalance on his blood sugar. Due to his age and the issues in this case our meeting with him was not, ultimately, of much assistance in determining the matters in dispute.
Witness B
Witness B is a National Director of Diabetes UK, with responsibility for Scotland. She therefore has a knowledge of the provisions made by local authorities across Scotland in relation to children with diabetes. She gave evidence that she considered there were several steps that a local authority could take in order to have a successful diabetes management programme. The key elements were a health care plan and the mutuality of the process across parents, the NHS and the local authority. Clear leadership was the most important aspect with a message from the top that children with diabetes should be supported.
Witness B was referred to the policy of Fife Council at C69. It was, she said, used as a demonstration of good practice within Scotland. Witness B gave evidence that job descriptions for staff in Fife have been altered in response to the Equality Act 2010, in order to require them to administer insulin and monitor children with diabetes as part of their job description. Dundee City Council were following suit and Diabetes UK wished to see this approach across Scotland. Anecdotally, Diabetes UK were aware of children having to move school to get better services in relation to their diabetes.
In cross-examination Witness B gave evidence that she understood local authorities to have a statutory responsibility to ensure the administration of necessary medicines and that was the understanding of Diabetes UK, albeit she accepted that certain education authorities had a different interpretation.
Witness C
Witness C is the Nursing Team Leader for Integrated Children’s Services within Responsible Body. She manages a wide team of nurses involved in the supporting of children and their families with long-term conditions. She confirmed that she adhered to the Responsible Body document “Policy for Supporting Children and Young People with Diabetes in Education”, dated December 2011 (R395-R405). She advised that that NHS responsibility was in relation to the advice, education and support of children receiving insulin. Whilst the NHS would facilitate the training of education staff, neither the school nurse nor Witness C’s team would have a remit to administer insulin.
Witness C first met him and his mother in December 2012. She was at meetings on 10th December 2012 when a number of options to get him back to school were discussed. One of the discussions had been as to whether the consultant could change his insulin regime by giving him longer acting insulin therapy in the morning so that he did not require to have administered insulin at lunch time. However, his lead clinician did not consider that that was in his best interests.
Witness C gave evidence that he did require adult assistance to deal with his insulin administration and blood monitoring. Witness C gave evidence about the signs of a hypo and hyperglycaemic incident. She gave evidence, if at all possible, if there were signs and symptoms it was best to check blood sugar levels in him. She gave evidence about what was involved in the training of an individual. There were various sessions that were two and a half hours in total, that could (and preferably should) be done intensively. In Witness C’s professional opinion the person checking the administration of insulin did not require to be trained as long as they had an understanding of what they were confirming. Even an individual with diabetes themselves would still require to complete NHS training before they could administer insulin in schools.
his health care plan is reviewed annually. The last amendments were made just before Christmas 2012. Information was added to advise about the way that he feels when he has low blood sugar. A safety net was put in detailing what to do when his blood sugar was near the level of 4 but it was near the end of the school day as this could result in it dropping below 4 by the time he got home. It was Witness C’s evidence that if he displayed a change of behaviour alone staff would be expected to check his blood sugar as his diabetes could be causing the symptoms. He had previously been referred to the Child and Adolescent Mental Health Service (CAMHS) for support in dealing with his feelings about diabetes. However, Witness C would hope that staff who knew him well could differentiate between bad behaviour and behaviour related to blood glucose: the only way to be certain about this was to do blood glucose tests.
Witness E
Witness E is the education officer with Responsible Body with a responsibility for quality improvement. He has held that post for six years. his remit is to try and improve standards across Responsible Body. He also has pastoral responsibilities for the geographical area of schools in S and W, including School A.
Witness E’s first involvement in his case was in September 2012. At that point a letter of complaint arrived at headquarters from The Appellant and was passed to Witness E for investigation. The nature of the complaint was that the care plan in place was not being followed properly. Witness E was made aware of a couple of occasions when individuals who had checked the administration of insulin were not trained and an occasion when his primary 2 teacher had allegedly not taken his diabetes into consideration when he had behaved badly.
Witness E visited the school on the morning of 11th September 2012. He met the members of staff who were volunteers as well as his teacher. He discussed the management of his medical condition with the head teacher. He checked the written records. He looked at his health care plan. He was reassured that all arrangements were satisfactory. He reported back to The Appellant.
Witness E attended to responding to an email from MSP in relation to him. This was to do with the same incident that had caused The Appellant’s complaint to headquarters. Thereafter Witness E gave evidence that he was in fairly regular telephone or email contact with The Appellant for updates and so on.
During the course of Witness E’s involvement The Appellant did raise a number of other concerns with him. Witness E would check the position in relation to these with the school. Eventually, he was informed that the volunteers at the school were going to withdraw their services with one week’s notice. his understanding was that the reason for them doing so was that they were extremely concerned that their involvement was being questioned by The Appellant and that every minute detail was being questioned. Following this Witness E made efforts to try and speak to the staff individually. He was keen to do this because he felt that he was one of the individuals that they were “fearful” of, because he and other senior managers and the MSP were involved. He wanted to reassure the volunteers that he was supportive of them, but they chose to politely refuse his attempts to meet with them.
Thereafter Witness E tried to identify a solution. He accepts that it was not feasible for him to attend school during that time. He spoke about trying to identify further volunteers within the school, trying to see if NHS could offer any solutions of avoiding the need for him to be injected at school and trying to establish whether there were any other possibilities.
Witness E attended a further meeting at the school on 21st January 2013. Prior to that the Head Teacher had issued a memo to all staff to see if anyone would be willing to do either task. The tasks being the administration of insulin or the carrying out of blood checks if insulin was being administered by The Appellant. Witness E suggested that they try a one to one personal approach with each member of staff in that regard.
In relation to the current job remit for ASN assistants Witness E felt that it did not cover the administration of insulin as it only covered emergency medicines. The eventual person within the school who volunteered, (ASNA), did not have her contract terms varied but did have additional hours added, which was agreed within headquarters. The additional support needs assistant, J who is now employed to coven (ASNA)’s maternity leave, has the use of a walkie talkie that allows her to call upon someone to check the insulin being administered or to be called upon to check blood at any point that that becomes necessary. If J were to be off ill then if they had advance notice of this then the authority would try to provide a colleague from another establishment and if they did not they would require to call upon The Appellant.
In cross-examination Witness E did not feel it would be appropriate to use the final sentence of the Additional Support Needs Assistants remit (Page 375) to cause them to deliver insulin.
Submissions for the Claimant
The solicitor for the claimant was good enough to provide us with a printed version of her submissions. These were comprehensive and well structured and we would not propose to repeat them here as they are within the papers. There was also a List of Authorities provided to us, which we considered.
Submissions for the Responsible Body
Solicitor for the Responsible Body began by indicating that it was accepted that he was a disabled person as defined in Section 6 of the 2010 Act. It was not disputed by the RB that the administration of insulin and other related tasks are auxiliary services in terms of the 2010 Act. It was accepted by the RB that he had been placed at a substantial disadvantage that could have been avoided by the provision of an auxiliary service during the period 3rd December 2012 until 29th January 2013. They do not make that same concession in relation to the period from 30th January 2013 until 12th April 2013 (which is the period during which the Claimant attended the school to administer insulin to him each lunch time). In relation to that second period the RB did not consider that having his mother attend school would amount to a substantial disadvantage.
The RB wished the tribunal to have regard to the various policies and guidance that applied in this case, including those guidance notes produced by the Equality and Human Rights Commission. They also wish us to have regard to the draft code produced by the Scottish Executive (R301 onwards). The RB’s position is that this case turns on whether it was reasonable for them to make the type of adjustments that would have been required to allow him to continue to attend school.
It was submitted that it was clear from the evidence of Witness D that the adjustment of staff contracts was not a straightforward matter. It was submitted that this is an exceptional case, that the RB’s policy did not meet. The location of the school and withdrawal of volunteers created particular difficulties and each case has to be considered on its own particular circumstances. It was submitted that the RB took all steps that it was reasonable for them to take. The RB were committed to the health care plan, which is comprehensive and reviewed annually. The staff within the RB schools carry out the administration of insulin on a voluntary basis. They wish to teach, not nurse.
In the particular circumstances of this case, therefore, the RB were unable to make the adjustments required by this child and those adjustments were not reasonable. It was The Appellant’s complaints to staff that caused them to withdraw and the reason for that was that she was maintaining that they were unable to perform the services properly. Even if volunteers had come forward as soon as he was no longer at school they would have needed to be trained and that, from the evidence of Witness C, took time. A number of options were explored and considered by the RB. The RB also has a duty to their staff and to the staff morale. There were no adjustments that it was reasonable for them to make to alleviate the substantial disadvantage to him.
The RB thus denies unlawful discrimination against him. This is an exceptional case where it was submitted that all options were considered by the RB. The claim should therefore be refused. The RB also lodged a List of Authorities which we considered.
2. Decision of the Tribunal:
The parties here accept that he is a disabled person in terms of Section 6 of the 2010 Act. They accept that Responsible Body is the responsible body for his school. They accept that the administration of insulin and blood checking for him are “auxiliary services” in terms of the 2010 Act. They accept that from 1st September 2012 the reasonable adjustments duty for schools and education authorities includes a duty to provide auxiliary services for disabled pupils. The tribunal considers that all of these concessions and agreements are well made in this case.
In relation to the evidence we do not consider that there are particular disputes of fact that we require to resolve before being able to make a decision. Whilst there were certain disagreements, for example, between the evidence of The Appellant and Headteacher, these did not appear to us to be directly relevant to our decision. The leading of evidence in this case did provide useful additional background and context for the Tribunal.
The reasonable adjustments duty is described in “Reasonable Adjustments for Disabled Pupils (Scotland)” guidance issued by the Equality and Human Rights Commission on page 4 thereof as, “The duty is to take such steps as it is reasonable to have to take to avoid the substantial disadvantage to a disabled person caused by …. the absence of an auxiliary service.” As the guidance says later (at page 6) the reasonable adjustments duty is triggered only where there is a need to avoid “substantial disadvantage”. “Substantial” is defined as being anything more than minor or trivial.
In this case in connection with the second period that we heard submissions about, being the period 30th January 2013 to 12th April 2012, we do not consider that he was at a substantial disadvantage. There was no difference in the education being provided to him at that time as to other pupils at the school. The only thing to distinguish him from his peers was the fact that his mother was attending school at lunchtime, having offered to do so, in order to administer his essential medicine. Whilst we accept the Claimant’s submission, that that differentiated him from the other children, we do not see how that differentiation was to his substantial disadvantage. We heard no evidence of such disadvantage. For instance we heard nothing to suggest that he was being teased, bullied or having his education otherwise interfered with as a result of his mother’s attendance. Accordingly, we refuse the claim in respect of this period.
In relation to the first period when he was absent from school, being the period from 3rd December 2012 until 29th January 2013, it was conceded by the RB that he was at a substantial disadvantage. Again, we consider that that concession was well made. We would have had little difficulty in deciding that he could not have attended school during that period, in the absence of anyone available to inject his insulin and to check his blood sugar levels. In those circumstances we consider that he would have been at risk had he attended school and thus could not attend. The fact that he was therefore entirely absent from school clearly placed him at a substantial disadvantage; he was missing out on almost all aspects of his education. Work that was sent home for him was a poor substitute to attendance in class.
Therefore, in respect of the period 3rd December 2012 until 29th January 2013, we require to go on to consider whether, in terms of Section 20 (5) of the 2010 Act the RB took such steps as it was reasonable for them to have to take to provide the service. The 2010 Act does not define “reasonable”. The Equality and Human Rights Commission Guidance states (at page 7): “The crux of the reasonable adjustments duty is not whether something is an auxiliary aid [or service], or whether it is an adjustment to a practice, but whether it is something that is reasonable for the school to have to do. It is not possible for a school to justify a failure to make a reasonable adjustment. The question is only whether or not the adjustment is reasonable.”
The guidance goes on to list some of the factors which are likely to be taken into account when trying to decide whether it is reasonable to make an adjustment:-
1. The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil – The Claimant’s position is a bald one. It is that the RB should have made alternative provision of auxiliary services following the withdrawal of the volunteers. The difficulty is that she does not say exactly what steps could have been taken or how they would have been immediately effective in getting him back to school.
The position adopted by the RB was that, upon the withdrawal of the volunteer staff, they were left with no options, that is to say no reasonable steps that they could have taken to provide him with the auxiliary services that he needed. In that regard they point to the fact that it would not be reasonable for them to require teaching staff to administer insulin as that was not part of their job description. The job description of teachers could not be easily amended or quickly amended due to the fact that it was a national process require input from trade unions. The RB pointed to the fact that the ASN assistants employed by them did not require to administer routine medicines as part of their job description either. Their position was that there was one standard contract for ASN assistants across Responsible Body and that was also a contract that could not be easily varied.
The difficulty with that argument is, that what actually happened to eventually resolve this dispute was that an ASN assistant was employed with the understanding and responsibility that she would require to administer his insulin. This begs the question whether it would have been possible for the RB to engage an ASN assistant on such an understanding at a much earlier time.
Indeed, it is submitted by the Claimant that the duty to make reasonable adjustments is an anticipatory one. The Equality and Human Rights Commission Guidance at page 5 indicates: “ A school’s duty to make reasonable adjustments is an anticipatory one owed to disabled pupils generally and therefore schools need to think in advance about what disabled pupils might require and what adjustments might need to be made for them”.
The circumstances in this case were that there had been a difficulty before he even began in Primary 1, when insufficient volunteers came forward to administer his insulin. One might think that that would have provided a warning to the RB that this issue required consideration.
The Tribunal was very surprised to hear that teaching staff and additional support needs staff in schools are being asked to volunteer for such duties. It is undoubtedly a testament to the caring qualities of many teachers and ASN assistants that they, against the advice of their trade union, offer their services as volunteers. Some of the services that these volunteers are being asked to provide, if not all, carry a heavy weight of responsibility. Witness D spoke in evidence about pupils being tube fed. We heard in evidence about examples in some of the guidance relating to pupils with tracheotomies. It is not difficult to see why a volunteer carrying out such a responsible role would withdraw their services in the face of perceived criticism. Equally, it is very understandable why a parent might have cause to complain about the auxiliary services being provided if they have reason to believe that such crucial functions for their child have not been carried out to the highest standard.
Against the background of this particular case and the difficulties on the transition from nursery to P1, and within the general context that we have just commented upon, we consider that it would have been a reasonable step for the RB in this case to have thought about and recruited an ASN assistant or another individual with a particular responsibility for the administration of insulin to him upon his arrival to primary school (such as has now happened). Had that step been taken then it would have been entirely effective in overcoming the substantial disadvantage suffered by him.
2. The extent to which support will be provided to the pupil under the Education (Additional Support for Learning) (Scotland) Act 2004 as amended- We would not consider that this factor applies in this case.
3. The resources of the school and the availability of financial or other assistance - given that the situation was eventually resolved by the recruitment of J, at the instigation and with the assistance of the RB’s Personnel Department, we consider that the resources available to the RB in this case were sufficient to make it reasonable to carry out the adjustments required.
4. The financial and other costs of making the adjustment - the evidence was that (ASNA) (the ASN assistant already within school who volunteered to assist, come January 2013) had her hours extended from 20 to 25.5 hours in order that she could administer insulin and otherwise assist him. We were not told the cost of this. Similarly we were not told of any additional cost in relation to the employment of J, the current asn assistant. The RB did not appear to make an issue of the cost and accordingly it appears reasonable to us to conclude that the RB are able to meet the cost, if any, of the necessary adjustments.
5 The Practicability of the Adjustment – The Guidance indicates, (page 12), “It is more likely to be reasonable for a school to have to make an adjustment which is easy than one which is difficult, though in some circumstances it may be reasonable to have to make an adjustment, even if it is difficult.” In the view of the Tribunal much of the RB’s defence to this case was directed towards the fact that it was not practicable for them to make adjustments. The difficulty for the authority is that we heard evidence that Fife Council have implemented a policy that overcomes these difficulties and requires ASN assistants to, inter alia administer insulin.
6. The effect of the disability on the individual – The effect on him was, in the view of the tribunal, extensive.
7. Health & Safety Requirements – These were not an issue in this case.
8. The need to maintain academic, musical, sporting and other standards – This was not an issue in this case.
9. The interests of other pupils and prospective pupils – This would only be relevant where the adjustment results in significant disadvantage for other pupils. We heard no such evidence in this case.
Having considered all of the factors in this case and having heard the evidence the Tribunal considers this to be a finely balanced issue. It is an issue of novelty as the provisions in this regard only came into force in September 2012.
We consider that there has been miscommunication between the parties in the past. For example, The Appellant was clear in her evidence, which we accepted, that she had at no time sought to be critical of the trained volunteers within the school. Witness A, one of the trained volunteers (who was a highly impressive witness and whom we have no doubt is a highly committed and caring teacher), was, nonetheless of the clear understanding that her actions and abilities were being called into question. It is a pity that this situation was allowed to occur. It is a pity that Witness A and other staff were not more protected from the detail of the ongoing concerns and issues between The Appellant and the school.. Notwithstanding the outcome of this case, we do hope that the parties’ involved seek to improve the communication between them for the ultimate benefit of him.
It was easy for the Tribunal to understand the concerns of any parent in this situation. Where one’s child has a potentially life-threatening condition that requires to be controlled by essential medication, one would want to be very clear that that condition is understood by those who have responsibility for one’s child at school and by those treating him or her. At the underlying crux of this case is the fact that The Appellant lost confidence in what was happening at school in relation to his diabetes. We consider that there is an element of fault on both sides for that situation occurring. More effective communication between the parents and the school could have alleviated anxiety on both sides.
In the final reckoning the duty lies on the RB to take such steps as it is reasonable to have to take. It is an anticipatory duty, requiring them to think about and consider the requirements of disabled pupils and the adjustments that may have to be made for them in advance. Even at the point of our consideration of evidence in this case we heard that there is no apparent fall back provision for him, should J, the current ASN assistant be absent. Similarly we heard nothing to suggest what would happen when (ASNA), who is currently on maternity leave (and who did not previously administer insulin but only carried out blood sugar checks as a volunteer) returns to work. We do not consider that this is a satisfactory state of affairs for him.
We would also wish to highlight at this stage the Equality and Human Rights Commission Guidance again, to the effect that: “It is not possible for a school to justify a failure to make a reasonable adjustment.” We did consider that some of the RB’s case appeared to be directed towards justification. For example they sought to persuade us that they could not make the adjustment for him as their policy was for the use of volunteers, that no-one had the administration of insulin as part of their contract and so on.
An element of planning in relation to him would be prudent and reasonable. In our judgement the recruitment of an ASN assistant with a responsibility for the administration of insulin to him was a reasonable step for the RB to take. That may not be the case for all children across Responsible Body; we agree with the submissions made by the RB that each case will turn on its own circumstances. In this case the recruitment of an ASN assistant was a step that should have and could have been taken or commenced as at 3rd December 2012. Whilst it may have been that no-one could have been available to allow him to return to school immediately we consider the fact that the RB did not even commence such an exercise amounts to a breach of their duty. Thus, in all the circumstances we uphold the claim in this regard and consider he was unlawfully discriminated against during the period 3rd December 2012 until 29th January 2013.
Against the background of this particular case and given our comments about the fact that we consider it incumbent upon both parties to try to improve communication between them, we do not consider it appropriate to order the issuing of a formal written apology. In addition and because of the fact that we are conscious of potential multi-agency involvement and complexity we do not intend to order the RB to review their policy for supporting children and young people with diabetes in education. However, we would very much hope that they would consider that such a step is necessary in light of this judgement.
