ANONYMISED DECISION OF THE TRIBUNAL
Gender: Male
Age: 14
Disability Discrimination Claim - Exclusion
1. Claim
The Claimant made a Claim to the Tribunal alleging that her son, the child had been the subject of disability discrimination by the Responsible Body for the Responsible Body. The Responsible Body opposed the Claim.
2. Decision of the Tribunal
The Responsible Body did not discriminate against the child in any of the following respects.
a. The Responsible Body’s failure to re-admit the child to School X following the expiry of the Exclusion dated October 2010 and before the Exclusion dated January 2011.
b. By issuing the Category 3 Exclusion in January 2011.
c. By refusing to re-admit the child to School X following his Category 3 Exclusion.
No contravention of the Equality Act 2010 has occurred.
and further, the Tribunal assigns a Conference Call to further consider this Claim (given the restricted scope of the Hearing and considering that part of the Claimant’s Case Statement remains live).
3. Preliminary Issues
The Claim was Case Managed prior to the Oral Hearing in terms of a number of Conference Calls. The identity and order of the witnesses was agreed in advance. It was agreed that the Consultant Psychiatrist, witness for the Claimant, could give evidence by Conference Call to alleviate inconvenience to her and her patients. It was agreed that the Tribunal’s bundle of papers be sent to her in advance.
Parties agents had agreed in advance that the scope of the Hearing before the Tribunal should be limited to certain aspects of the Claimant’s Case Statement. The Tribunal acceded to such Joint Application. The purpose was to narrow the issue to facts and circumstances post dating the child’s Exclusion in October 2010. It was noted that the Claimant was reserving their position in respect of the other elements of their Case Statement and that following the Tribunal’s determination of the elements agreed to be heard they may or may not insist upon those other elements.
Late papers were received from both parties prior to and at the Hearing.
At the commencement of the Oral Hearing a preliminary Motion was made on behalf of the Claimant. On the morning of the Hearing it had been formally intimated to the Claimant’s agent by the Responsible Body’s agent that it was no longer considered that the child was suitable to be placed within mainstream school. It was submitted that this position had not previously been intimated to the Claimant and that it represented a departure from the Responsible Body’s Case Statement. It was submitted on behalf of the Claimant that this constituted a change to the Responsible Body’s case and that this had an impact upon preparation of the Claimant’s case. It was submitted that the Tribunal could only authorise a Party’s departure from their Case Statement in terms of Rule 29(4)(b) of the Additional Support Needs Tribunals for Scotland Rules (Disability Claims Procedure) Rules 2011 if it was fair and just to do so. Upon further enquiry the Claimant’s agent indicated that they would not be seeking an adjournment. The agent for the Responsible Body submitted that their disclosure did nothing to alter the nature of their Case Statement and that they were to be adhering to the terms of their previously lodged Case Statement in the Hearing. The Tribunal adjourned to give consideration to the preliminary Motion on behalf of the Claimant. The Tribunal repelled the Motion. The Tribunal did not consider that there had been any material change in the Responsible Body’s Case Statement and was satisfied that there had not been any prejudice to the Claimant. No new grounds of opposition were in fact sought to be introduced. The Tribunal intimated that should the Claimant in the course of the Hearing consider that further documents or an additional witness be required that consideration would be given to such a request. Ultimately no such request was made.
4. Summary of Evidence
The Tribunal had regard to the bundle of papers (T1-T40, A1-A66 and R1-R211).
The Tribunal also heard oral evidence from:-
The child’s stepfather
Consultant Psychiatrist
Head Teacher School X
Head of Education, the Responsible Body
Educational Psychologist
5. Findings in Fact:
1. The child is 14 years of age. The child resides with his mother and stepfather.
2. The child has autistic spectrum disorder, dyslexia and working memory difficulties (both auditory and visual). These impairments have a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The adverse effects are more pronounced and more substantial when the child is experiencing stress.
3. The child has a disability in terms of Section 6 of the Equality Act 2010. The Responsible Body are the Responsible Body for School X in terms of Section 85(9)(c) of the Equality Act 2010.
4. The child attended Primary School in another local authority. His behaviour there was problematic. He was excluded from school twice.
5. The child and his family moved to the current local authority in 2008. He was enrolled in School Y which makes provision for pupils with additional support needs. His behaviour there was problematic. Between October 2008 and November 2009, the child was excluded from School Y on eight occasions.
6. The child has a Coordinated Support Plan. There is currently a dispute between The Responsible Body and the child’s mother and stepfather regarding the content of this Plan. There is a pending Claim before the Tribunal in respect of this dispute.
7. The child was not educated at school between November 2009 and February 2010. In February 2010 the child was enrolled in the Autistic Spectrum Disorder Base at School X. This is a specialist base for a maximum of eight pupils. It is the only specialist Autistic Spectrum Disorder Base in the authority. The staff there are well trained in providing education for pupils with autistic spectrum disorder. Pupils within the base can access a full curriculum on either a full or part-time timetable at School X. The child was admitted to the base on a full-time timetable and spent time within the Autistic Spectrum Disorder Base and also in mainstream classes.
8. The child’s behaviour at School X within the Autistic Spectrum Disorder Base and mainstream schools was problematic. This included him ignoring instructions, swearing at peers, teachers and support staff and engaging in dangerous behaviour. The Responsible Body trained and engaged an Additional Learning Support Teacher to support the child and made available a separate “sanctuary” room to allow the child an area in which to calm down. Despite these steps being taken, the child’s behaviour continued to cause concern.
9. In March 2010, the child’s behaviour was outwith the control of staff and School X, including senior management there. The child was excluded from school in terms of a Category 1 Exclusion.
10. A readmission meeting was held in March 2010. The child did not attend. No agreement was reached between the child’s mother and stepfather and the Responsible Body regarding the child’s readmission.
11. Further readmission meetings and a Multiagency Meeting subsequently took place to discuss the child’s readmission. The child’s mother and stepfather declined to attend one of these meetings (May 2010). No agreement was ever reached regarding the child’s readmission and a Level 2 Exclusion was issued.
12. The working relationship between School X and the Responsible Body on the one hand and the child’s mother and stepfather on the other had effectively broken down by May 2010.
13. Throughout the summer of 2010 further assessments were undertaken and in particular by the Child & Adolescent Mental Health Service. This recommended the child being educated in mainstream school. Despite the fact that no resolution had been reached following the former exclusion which had commenced in March 2010 when the child had been excluded from the Autistic Spectrum Disorder Base at School X it was agreed that he would enter full-time mainstream classes at School X in August 2010, being enrolled, of new, in the mainstream High School there as opposed to the Autistic Spectrum Disorder Base.
14. The child commenced mainstream classes at School X in August 2010. In advance the Responsible Body’s Principal Educational Psychologist provided in-service training to staff specifically tailored to the child’s attendance.
15. There were immediate problems with the child’s behaviour. Some days were better than others but the child’s daily life and behaviour at school was characterised by him disrupting classes, swearing at and intimidating teachers and acting violently.
16. A Review Meeting took place in September 2010 to discuss the child’s circumstances. The Responsible Body offered a variety of strategies including an offer to reduce the number of subjects which the child was participating in to seek to reduce his stress and improve the situation. All offers made by the Responsible Body were rejected by the child’s mother and stepfather. Unusually it was agreed that email correspondence would flow back and forth from the school and the child’s mother and stepfather regarding the child’s days at school. There was never any acknowledgement from the child or his mother and stepfather that the child’s behaviour was disruptive, unacceptable or that they were seeking to take further active steps themselves to stop repetition of the problems.
17. A series of events took place in October 2010 as a result of which the child was made the subject of a Category 2 Exclusion. He repeatedly shouted and swore at a teacher. After leaving the classroom he shouted abusively in the corridor causing disruption to his own class and to other classes. As a result his own class had to be taken to another area of the school. The child continued to defy instructions by seeking to re-enter his class. He tore a poster from the wall, crumpled it up, looked a female senior member of staff in the eye and threw it in her face. The child constituted a threat to the health and safety of others. He was persuaded to enter an empty classroom. He picked up a dumbbell there, held it threateningly close to the member of staff, then slammed it menacingly on the floor. The member of staff was in fear of her safety. The child persisted in continuous verbal abuse of two senior members of staff. One teacher involved was 6 months pregnant and was particularly anxious. The child was shouting and violently punching and kicking doors and walls. Despite being instructed not to do so the child sought to enter his classroom and persistently pushed against staff in a very intimidating fashion. He pulled on the arms of staff to seek to do so. He tore a paper display from the wall, crumpled it up and threw it directly in a staff member’s face. He stood close to the Deputy Head Teacher, eyeball to eyeball, and swore in their face. He sought to block the route of the Head Teacher who had been checking upon the situation. The child’s behaviour was very disruptive to the whole running of the school. The health and safety of the child, pupils and staff were in jeopardy. The child was beyond the control of anyone within the school. The police required to be contacted to resolve the conflict. The child was made the subject of a Category 2 Exclusion on that day.
18. The legal criteria for the child’s exclusion was that the Responsible Body considered that in all the circumstances to allow the child to continue attendance at School X would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there.
19. A Readmission and Multiagency Meeting was held in October 2010. No consensus was reached regarding the child’s readmission.
20. A further Readmission Meeting was held in November 2010. Again no consensus was reached regarding the child’s readmission. The child’s mother and stepfather rejected any suggestion that the child’s education provision be changed from attending School X on a full-time timetable.
21. The child’s mother and stepfather rejected the provision of work prepared and tailored to the child’s needs which could be completed at home. The child’s mother and stepfather rejected the possibility of any outreach teaching provision. The child’s mother and stepfather refused to consider any other alternative to the child returning to School X in mainstream classes on a full-time basis.
22. The child’s mother and stepfather requested the Responsible Body issue a Category 3 Exclusion in terms of an email sent on their behalf by their agent in December 2010.
23. In January 2011, the Responsible Body confirmed their Category 3 Exclusion by way of a letter written to the child’s mother and stepfather by the Head Teacher of School X. Although the child was excluded from School X permanently he remains on the roll of that school.
24. The child’s mother and stepfather appealed to an Education Appeal Committee against the decision taken by the Responsible Body to exclude the child from School X. The Committee concluded that the child’s behaviour leading up to his exclusions in March and October 2010 were entirely unacceptable and were satisfied that the Responsible Body had taken all reasonable steps to try and address the child’s very challenging behaviour but without success. The Committee concluded that the reason for these exclusions was that, in all the circumstances, to allow the child to continue attendance at the school would be likely to be seriously detrimental to the order and discipline in the school and the educational well-being of the pupils there, including the child himself. They further noted that despite the Responsible Body’s attempts to reach an agreement with the child’s parents on an appropriate route for the child continuing education this had proved unsuccessful. The Committee agreed to uphold the Decision of the Responsible Body to issue a Category 1 Exclusion in March 2010, a Category 2 Exclusion in October 2010 and a Category 3 Exclusion on in January 2011.
25. No Appeal to the Sheriff was lodged in respect of the Education Appeal Committee’s Decision.
26. The Responsible Body’s Guidelines on Exclusion from School were not followed completely. Certain letters issued to the child’s mother and stepfather were not prepared in accordance with the terms of style letters. An initial readmission meeting ought to have been held within 7 (5 school) days of the child’s Exclusion in October 2010 but this did not happen. A Multidisciplinary Meeting was not convened within 15 days of the decision to exclude. No specific conditions of readmission were ever explicitly set out in writing.
27. The child’s attendance at School X is likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there.
6. Reasons for Decision
The Tribunal considered all of the evidence available and was satisfied that there was sufficient evidence available to the Tribunal to reach a fair decision on the Claim.
The vast majority of the facts established by the Tribunal were not disputed by the parties. The major possible exception to that are the specific events which took place at School X in October 2010. In this respect the Tribunal preferred the evidence of the Head Teacher of School X who was in attendance that day over the version of events outlined by the child’s stepfather, who was not.
The Tribunal found all of the professional witnesses who gave evidence to be credible and reliable.
Throughout the course of the proceedings the already limited scope of the Hearing was further focused. The Claimant’s representative intimated that they were only to insist upon three allegations of discrimination. These were all allegations of discrimination in terms of Section 15 of the Equality Act 2010.
Parties representatives agreed the terms of the questions to be considered by the Tribunal. They are:-
A Did failure to re-admit the child to School X following the expiry of the Exclusion dated October 2010 and before the Exclusion dated January 2011 amount to discrimination arising from disability?
1. Has the claimant established that the failure to re-admit the child to School X during that period was because of something arising from his disability?
2. If the child was not readmitted to School X during that period because of something arising from his disability, has the claimant established that this was unfavourable treatment ie put him at a disadvantage?
3. If so, can the Responsible Body show that their failure to readmit the child during that period was a proportionate means of achieving a legitimate aim?
B Did the Category 3 Exclusion of January 2011 amount to discrimination arising from disability?
1. Has the claimant established the Category 3 Exclusion was because of something arising from the child’s disability?
2. If the Category 3 Exclusion was as a result of something arising from the child’s disability, has the claimant established that this was unfavourable treatment ie put him at a disadvantage?
3. If so, can the Responsible Body show that the Category 3 Exclusion was a proportionate means of achieving a legitimate aim?
C Did the refusal by the Responsible Body to re-admit the child to School X following his Category 3 Exclusion amount to discrimination arising from disability?
1. Has the claimant established that the refusal to re-admit the child after the Category 3 Exclusion was because of something arising from his disability?
2. If the child was not readmitted to School X following the Category 3 Exclusion as a result of something arising from his disability, has the claimant established that this was unfavourable treatment ie put him at a disadvantage?
3. If so, can the Responsible Body show that this was a proportionate means of achieving a legitimate aim?
Parties presented written submissions to the Tribunal, supported by oral submissions. The Claimant relied upon a number of Statutory and Case Authorities which were produced. The Responsible Body did not. Following the conclusion of the Hearing the Responsible Body’s agent requested that they produce further additional written submissions. This was allowed subject to the Claimant’s agent having an opportunity to respond.
It is perhaps helpful to set out the Tribunal’s consideration on a number of matters prior to the answering of the questions themselves.
The child has a disability in terms of Section 6 of the Equality Act 2010. The child has autistic spectrum disorder, dyslexia and working memory difficulties (both auditory and visual).
There was no dispute between the parties that the Responsible Body had knowledge of the child’s disability.
The Tribunal considered the statutory definitions contained within Section 15 of the Act.
The Tribunal firstly considered the “arising from disability” element of Section 15(1)(a).
The Consultant Psychiatrist in her evidence confirmed that there is a relationship between the child’s disability and his day-to-day behaviour. She stated that his day-to-day behaviour is influenced by his autistic spectrum disorder. She cannot attribute the entirety of the child’s behaviour however to any one cause. The Educational Psychologist agreed with this assessment. He confirmed that you cannot divorce any of the child’s day-to-day behaviours from his underlying diagnosis of autistic spectrum disorder. Both the Consultant Psychiatrist and the Educational Psychologist gave evidence to the effect that it is not possible to specifically directly correlate specific behaviours to specific underlying causes such as the child’s condition of autistic spectrum disorder.
The Tribunal considers that it is not necessary for the Claimant to establish that all of the child’s behaviours related solely to his disability. On the basis of the evidence from both the Consultant Psychiatrist and the Educational Psychologist the Tribunal concluded that the child’s behaviours, including those which led to his exclusions, related to and arise in consequence of his disability. The Tribunal was satisfied that there is a connection between the behaviours leading to the child’s exclusion and his disability. His behaviour in October 2010 did arise from his disability and led directly to his exclusion. The Tribunal had regard to the Equality Act 2010 Draft Code of Practice: Schools in Scotland Draft Code of Practice, together with other (non-Draft) Codes of Practice pertaining to the Act.
The Responsible Body’s representative sought to persuade us that the failures to re-admit and the Category 3 Exclusion all arose not as a consequence of the child’s disability but due to the lack of agreement over re-admittance conditions. Accordingly such “treatment” had nothing at all to do with the child’s disability. The Tribunal rejected that proposition.
The Tribunal considers that to seek to dissociate the circumstances surrounding the child’s failure to be readmitted following the Category 2 Exclusion in October and to exclude him on a Category 3 Exclusion in January from the originating facts and circumstances which led to his exclusion is false. Whilst as a matter-of-fact re-admittance conditions were not agreed, the child’s originating behaviours arising from his disability are, in the Tribunal’s consideration, the primary and principal reason for these subsequent events. The failure to re-admit the child to School X after the expiry of the Exclusion dated October 2010 and before the Exclusion dated January 2011, and the Category 3 Exclusion did arise from the child’s disability.
The Claimant specifically asked the Responsible Body to issue a Category 3 Exclusion (by way of email sent on their behalf by their agent in December 2010). The Responsible Body sought to avoid this. The Claimant subsequently appealed against this Exclusion and this appeal was refused by the relevant Education Appeals Committee. No further Appeal was lodged to the Sheriff. The Tribunal heard no other relevant evidence regarding the circumstances following the Category 3 Exclusion being issued. No request was made by the Claimant to have the child readmitted. There was no failure to re-admit. The Tribunal considers that the reasons and circumstances regarding any failure to re-admit the child by this time were not related to the original Exclusion in October and as such this alleged treatment does not arise from the child’s disability.
The Tribunal thereafter gave consideration to the definition of “unfavourable treatment”. Again the Tribunal referred to the Codes of Practice as above stated. The parties were agreed and the Tribunal considers that the appropriate consideration is whether treatment as a result of something arising from the child’s disability put him at a disadvantage. The disadvantages which the child suffered are clear and obvious. He remained an excluded child. He was unable to attend school and benefit from day-to-day education within the school environment. The Tribunal does not consider that they require to set out other disadvantages at length. An excluded child is one example of someone suffering disadvantage which is referred to within the Draft Code of Practice.
The Tribunal therefore having been satisfied that both component parts of Section 15(1)(a) of the Act had been established by the Claimant, relative to the principal questions A and B, proceeded to consider the terms of Section 15(1)(b).
This is the justification element of Section 15 of the Act. This places an obligation in the current case upon the Responsible Body to show that the treatment is “a proportionate means of achieving a legitimate aim”. A legitimate aim should be legal, not be discriminatory and represent a real, objective consideration. To be proportionate the steps taken should be appropriate and necessary. They should be taken fairly.
On the basis of the evidence and the Tribunal’s findings we concluded that the Responsible Body did have a legitimate aim ie a real need to secure the following:-
i. Maintaining academic and other standards within School X.
ii. Ensuring the health, safety and welfare of pupils and staff there.
The Tribunal also concluded that the Responsible Body’s treatment of the child was, in all of the circumstances, proportionate. Other than failing to re-admit the child and issuing the Category 3 Exclusion there was no other way of achieving these aims. No progress or consensus was reached regarding conditions of re-admission. The Responsible Body were not to blame for this. The Responsible Body went to significant efforts to accommodate the child educationally within School X and in terms of alternate temporary educational proposals following his Category 2 Exclusion. The Responsible Body acted reasonably and in good faith.
There are two specific aspects of the Claimant’s submissions in relation to the justification test which the Tribunal feels obliged to comment upon specifically:-
1. It was submitted that the statutory terms of the school’s General (Scotland) Regulations 1975 (SI 1975 No 1135) had been breached. The thrust of the submission was that if the Statutory Code had been breached then there is a prime facie defect in the exclusion procedures which had taken place and they had taken place without lawful authority. Accordingly such steps could never be proportionate. The Tribunal recognises that the terms of the said Regulations were not fully adhered to. An initial re-admission meeting did not take place in the manner described in the timescales set out. Their terms appear to be mandatory. The Tribunal considers however that it is not necessary to analyse whether their terms are mandatory or directory but to firstly consider the extent to which they have not been adhered to and to secondly consider whether or not any prejudice has been caused or injustice done. There was no evidence to that effect and it was not in fact suggested to the Tribunal that as a matter-of-fact the process which had followed had been adversely effected. Even if there had been an adverse effect the Tribunal is not satisfied that such effect was of significance.
2. It was submitted on behalf of the Claimant that the extension of the 15 day temporary Exclusion issued in October 2011 beyond that 15 day period was unlawful. We were referred to the case of Proudfoot –v- City of Glasgow Council being a Glasgow Sheriff Court case arising from a school exclusion. We were not satisfied the circumstances are the same here. The Category 2 temporary Exclusion issued in October 2010 was allowed to continue and informally extended by the Responsible Body fully in accordance with the terms of the Responsible Body’s Guidelines on Exclusion from School. In particular referral was made to the Responsible Body’s Inclusive Services Manager. The Guidelines specifically set out that other than “… in the most exceptional circumstances …” the school should avoid implementing Category 2 and Category 3 Exclusions for pupils with significant additional support needs and, in particular those with a Co-ordinated Support Plan. It was not disputed in the Tribunal proceedings by the Claimant that the Category 2 Exclusion issued in October was unjustified. The Tribunal was satisfied that the staff at School X and management staff of the Responsible Body did their utmost to seek to avoid making the child the subject of a Category 3 Exclusion. The child’s behaviours at School X including those in October 2010 were exceptional. The Tribunal considers that the extension beyond the 15 day period so as to allow an appropriate solution to be found is entirely consistent with this. This was a proportionate course of action. The Tribunal does not consider therefore that such extension of the initial temporary 15 day period rendered the subsequent period of exclusion unlawful.
Given the Tribunal’s reasoning as hereinbefore stated we now turn to the questions agreed by the parties to be answered:-
A Did failure to re-admit the child to School X following the expiry of the Exclusion dated October 2010 and before the Exclusion dated January 2011 amount to discrimination arising from disability?
NO.
1. Has the claimant established that the failure to re-admit the child to School X during that period was because of something arising from his disability?
YES
2. If the child was not readmitted to School X during that period because of something arising from his disability, has the claimant established that this was unfavourable treatment ie put him at a disadvantage?
YES
3. If so, can the Responsible Body show that their failure to readmit the child during that period was a proportionate means of achieving a legitimate aim?
YES
B Did the Category 3 Exclusion of January 2011 amount to discrimination arising from disability?
NO
1. Has the claimant established the Category 3 Exclusion was because of something arising from the child’s disability?
YES
2. If the Category 3 Exclusion was as a result of something arising from the child’s disability, has the claimant established that this was unfavourable treatment ie put him at a disadvantage?
YES
3. If so, can the Responsible Body show that the Category 3 Exclusion was a proportionate means of achieving a legitimate aim?
YES
C Did the refusal by the Responsible Body to re-admit the child to School X following his Category 3 Exclusion amount to discrimination arising from disability?
NO
1. Has the claimant established that the refusal to re-admit the child after the Category 3 Exclusion was because of something arising from his disability?
NO
2. If the child was not readmitted to School X following the Category 3 Exclusion as a result of something arising from his disability, has the claimant established that this was unfavourable treatment ie put him at a disadvantage?
The Tribunal did not require to consider this question.
3. If so, can the Responsible Body show that this was a proportionate means of achieving a legitimate aim?
The Tribunal did not require to consider this question.
The Tribunal noted with regret the very fixed view of the child’s mother and stepfather. They have been unable to contemplate anything other than the child returning to School X in full-time mainstream classes against professional advice otherwise. They remain of that view. There is an underlying theme, confirmed by the Educational Psychologist’s review of the child’s records, that the child’s mother and stepfather have failed to look at the full picture, failed to put the child’s interests first and have failed to acknowledge the impact of the child’s behaviour upon other pupils and staff at School X. They have done little other than to seek to justify the child’s behaviour and seek to blame others for the situation which the child has subsequently found himself in. This is particularly evidenced by the nature of the child’s stepfather’s demeanour and conduct in giving evidence and the terms of email correspondence which flowed between them and the school throughout 2010. It is specifically noted that in the context of one email (produced at R96), it is alleged by the child’s mother and stepfather “that the Responsible Body have done everything to frustrate the possibility of a satisfactory solution …”. This is a very warped view of the facts.
The Tribunal is satisfied that school staff at School X together with Officers of the Responsible Body made exceptional allowances and used every practical means by which to accommodate the child educationally and to seek to obtain a solution to the difficulties which arose. The Tribunal does not accept the proposition put forth on behalf of the Claimant that the Responsible Body sought to permanently exclude the child from School X at all costs. The child’s mother and stepfather failed to accept or even consider the suggestion of alternate temporary education for the child. They refused to accept outreach teaching. They refused to consider the child being placed in an alternate school for a period of time on a hosting arrangement whereby he would remain on the roll at School X. They refused to have the child participate in homework set by the school. The child’s mother and stepfather breached their responsibilities to the child as set out within the Responsible Body’s Guidelines on Exclusions. It also seemed to the Tribunal that regretfully the child has undoubtedly picked up upon the negative views of the child’s mother and stepfather towards staff at School X in particular.
Given the Tribunal’s decision we did not find that a contravention of the Equality Act 2010 has occurred. As such the Tribunal has not required to give consideration to the making of an appropriate Order in terms of part 3 of Schedule 17 of the Act. The Tribunal feels obliged to record however that even if the Responsible Body had failed to establish that the treatment was a proportionate means of achieving a legitimate aim then the Tribunal would not have ordered the child’s return to School X, which was one of the remedies sought by the Claimant. This would have been entirely inappropriate. The child did not make good progress at School X notwithstanding the views of the child’s mother and stepfather. Regard has to be had to the good order at School X and the welfare of pupils and staff there. The Educational Psychologist gave clear evidence that the child’s proposed return to School X would undoubtedly fail and be further damaging and detrimental to the child’s interests and future education. No credible contrary evidence existed.
The Tribunal finally would encourage the child’s mother and stepfather to reflect upon this decision and to consider the other alternatives for the child’s future education as already proposed by the Responsible Body at the earliest opportunity.
