DECISION OF THE TRIBUNAL
- Claim
The Claimant claimed that the Responsible Body “The School” discriminated against her son “The Child” by reason of his disability in their refusal to admit him to the school.
- Summary of the Decision
The Responsible Body discriminated against “The Child” on the basis of his disability by their refusal to offer him at place at “The School”.
The Tribunal direct the Responsible Body:
(i) to offer “The Child” a place at the school from August 2014;
and, if the offer is accepted,
(ii) to make provision of reasonable adjustments for “The Child” in accordance with an up-to-date assessment of his needs taking account of all relevant information from his S1 year at School A
- Findings of Fact
(1) “The Child” is aged 13. He lives with his parents and older sibling.
(2) The Child came with his sister to live with Mr and The Claimant as a foster child when he was five years old. He was adopted by them in June 2012.
(3) The Child attended School B from October 2006. His sister also attended School B. School B is a mainstream primary school.
(4) The Child has dyslexia. This is an impairment which has a substantial and long-term adverse effect on a normal day to day activity, namely reading. He is a disabled person in terms of section 6 of the Equality Act 2010.
(5) When he was a looked after child, Council A had responsibility for him. Throughout his years of primary education Council A provided funding for additional support within school. He required considerable additional support including supervision within the playground in the early years of school. The amount of funding provided by Council A was initially fifteen hours support per week. By the time The Child was in P6 the funding had been reduced to seven hours, and in P7 the funding provided for additional support was reduced to three hours per week.
(6) Council A determined that funding for additional support needs would cease when The Child commenced secondary education.
(7) In P7 The Child accessed all areas of the curriculum. His dyslexia impacted on his ability to read, write and spell. Despite his chronological age, he was reading at early primary level. He had individual reading support for ten minutes each day when he was extracted from class. Twice a week he had fifteen minutes specific spelling and phonological work with a group of children. From November to March he had weekly support from Dyslexia Support Service. A couple of times a week he had ten to fifteen minutes support from the ASN Co-ordinator. There was a pupil support assistant in class to support The Child as well as other children. He was given differentiated texts, for example for project work. He did not require one to one support in class.
(8) The Child’s name was placed on a waiting list for a place at “The School” in October 2006.
(9) “The School” is a grant-aided school funded by the Scottish Government. It is a community comprehensive school with integrated primary and secondary departments. The primary department has a roll of 462 pupils and the secondary department has a roll of 584 pupils.
(10) “The School” is a public authority and is subject to the public sector equality duties set out in section 149 of the Act and The Equality Act 2010 (Specific Duties)(Scotland) Regulations 2012.
(11) The Child’s sister moved from School B to “The School” to commence S1. She is now in S3 at “The School”.
(12) The Child lives at an address which is a “List 1 designated address” under the Admissions Regulations for “The School”. His sister is a qualifying sibling in terms of the Admissions Regulations.
(13) Consequent on his place on the waiting list, during The Child’s P6 year, the Depute Rector of “The School” contacted Mr and The Claimant regarding The Child’s potential admission to the school in August 2013. They had a meeting in February 2012, when the amount of support being provided to The Child at School B was discussed, and it was agreed that Mr and The Claimant would contact the school when there was a clearer diagnosis of The Child’s needs, the support likely to be made available to him, and clarification of funding to follow him from Council A.
(14) Despite attempts by “The School” to obtain details of the psychological and dyslexia assessments underpinning The Child’s diagnosis from Council A, and a detailed assessment of The Child’s needs from Dyslexia Support Service, limited information was made available.
(15) Because there was such limited information, “The School” instructed Witness D (an Educational Psychologist who works for the school on a consultancy basis) to assess The Child, looking at his cognitive profile, style of learning, and level of ability. Witness D prepared a report dated 9 May 2013. The Child’s overall reading skills were assessed by Witness C, then Principal Teacher Support for Learning at “The School”, in April 2013. His reading comprehension was assessed then as age equivalent less than seven years.
(16) Based on Witness D assessment, the tests carried out by Witness C, a Review Report from Dyslexia Support Service, and information from Mr and The Claimant that, were he to attend a local authority secondary school The Child would have individual support from a pupil support assistant, daily attendance at a reading group, and on-going support from Dyslexia Support Service, “The School” concluded that The Child would benefit from specialist support and on-going classroom support for approximately 50% of the week. A decision was taken that, without additional external funding, “The School” could not meet The Child’s needs, and therefore they could not offer The Child a place in the school. The Rector wrote to Mr and The Claimant by letter dated 25 June 2013 intimating this decision.
(17) Mr and The Claimant did not appeal this decision in terms of the Admission Regulations.
(18) “The School” has 93 secondary pupils with additional support needs of some kind, to date, 27 of whom have dyslexia recorded as a principal element of their ASN profile.
(19) “The School” has 1.6 full-time equivalent Support for Learning teachers, and 5 full-time equivalent pupil support assistants to cover both primary and secondary departments. The school has no access to specialist local authority pupil support services such as Dyslexia Support Service.
(20) Since 2005 (and the coming in to force of the Education (Additional Support for Learning)(Scotland) Act 2004) “The School” cannot seek any additional funding from the Scottish Government to support any individual child’s additional support needs. The school has an annual budget in the form of the negotiated grant from the Scottish Government. Budget projections require the school to make savings over the period to 2015/16. Initially there will be a reduction in teacher numbers of 0.4 full-time equivalent by summer 2014. In managing their budget, “The School” have chosen not to reduce the staffing levels for learning support/additional support needs, to maintain these at the current levels, but not to expand. The required cuts will be made in other areas of the school.
(21) In January 2014 Witness E, Principal Teacher, Support for Learning, carried out an assessment of The Child’s needs. This was because “The School” was giving further consideration whether it could offer a place to The Child. This assessment was reviewed by a group consisting of the Rector, Deputy Rector, Witness D and Witness E. The conclusion was that The Child would require thirty minutes a day of reading recovery and phonological awareness, delivered by a suitable specialist, until at least the end of S2; support through a paired reading scheme as appropriate; withdrawal from French (4 periods) which would facilitate the reading recovery scheme and provide additional time for rest, consolidation and homework; and access to a pupil support assistant for 50% of the curriculum. In addition he required access to PC or laptop facilities at school and at home, and access to Read and Write Gold at school and at home. Read and Write Gold is a software package with a number of different features including text to speech and word prediction. It is available for use throughout “The School”.
(22) “The School” calculated if The Child’s needs were to be met from the existing provision, there would be very significant adverse effects on other pupils whose additional support needs could not then be met. In 2014 the school calculated that to meet The Child’s needs, and to maintain the provision of necessary support for learning for the children already in school, additional staffing hours would be required. This is calculated by the school as costing over £70,000 to meet The Child’s needs until the end of S4.
(23) In managing the fixed budget, the School has to allow for contingency planning, for example the additional costs incurred in maternity leave cover and sickness cover.
(24) The Child is of low average intelligence. He has reading comprehension of at best eight years. His listening comprehension is in the low average range. His working memory is poor.
(25) Concurrent to the application for admission to “The School”, Mr and The Claimant made a placing request to Council B for The Child to attend School A. The Child proceeded through the transition process from School B to School A and commenced S1 there in August 2013.
(26) School A has a roll of 1080. There are 16 pupils with dyslexia in S1, out of a total of 180 pupils. A small number of pupils work to achieve National 3 level in S4.
(27) The Child accesses the full curriculum and receives the following additional support:
during the winter and spring terms, before school, he attends a daily twenty five minute reading programme provided for those pupils in S1 and S2 with dyslexia or similar literacy difficulties. This is overseen by a support for learning teacher, and pupils are paired with a senior pupil;
during winter and spring terms, twice weekly paired reading;
homework support, attending a fortnightly homework club within the support for learning department;
he has an Alpha Smart keyboard;
for three out of four periods of English, and one out of three periods of social subjects there is a pupil support assistant assigned to him and one other pupil. The pupil support assistant will also support other pupils in the class as required.
(28) Dyslexia Support Service is a resource available for School A. Staff from the Service may come into the school to advise, or for teacher training.
(29) The Claimant is satisfied that the amount of support provided for The Child at School A is sufficient for his needs.
(30) Council B have a policy of not providing information in respect of any pupil from any local authority school to “The School” before such a child has been offered a place. This means that “The School” had no direct information from teachers at School B or from those teaching him currently at School A as to his abilities and how he managed in a day to day classroom setting, nor were they able to observe him in a class setting. Thus their assessments of The Child were made on a “snapshot” of his abilities in a test situation.
(31) Both “The School” and School A deploy their additional support for learning resources using a bidding system to ensure that the support available is prioritised and directed to those pupils who need it most.
(32) The Child was not admitted as a pupil to “The School” because of his disability. This was discriminatory. The quantification of resources potentially required to meet The Child’s additional support needs was not based on a thorough objective assessment of his needs. The decision to refuse to admit him to the school was not justifiable.
- Reasons for the Decision
(1) The Tribunal heard oral evidence from Witness A, retired Teacher and Additional Support Needs Co-ordinator, School B; Witness B, Deputy Head Teacher School A; The Claimant; Witness C, Depute Rector, “The School”; Witness D, Educational Psychologist; Witness E, Principal Teacher of Learning Support, “The School”; and Witness F, Rector, “The School”. We had regard to all the oral evidence and the documentation at pages T1 –T41, C1 – C49 and R1 to R65. We were satisfied that there was sufficient evidence available to the Tribunal to reach a fair decision on the claim.
(2) The issue was whether or not there was discrimination by “The School” as the responsible body against The Child, in terms of section 15 of the Equalities Act 2010 (“the Act”), in their refusal to offer The Child a place at the school.
(3) Section 85(1) of the Act states:
The responsible body of a school … must not discriminate against a person –
(a) in the arrangements it makes for deciding who is offered admission as a pupil;
(b) as to the terms on which it offers to admit the person as a pupil;
(c) by not admitting the person as a pupil.
(4) Section 15(1) of the Act states:
A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B’s disability;
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(5) It was accepted by “The School” that The Child is a disabled person in terms of section 6 of the Act. In submissions Counsel for the school suggested that, if his needs were such that they were fully met with the fairly limited support he was receiving at School A, then he may not in fact have an impairment so substantial as to satisfy the provisions of section 6. However no evidence was led to challenge the assertion that The Child has a disability, nor was this explored with the educational psychologist or other witnesses.
(6) We had very little information about The Child’s views. The Claimant told us that most of his class mates, including his closest friends, moved from School B to “The School”, and that he felt somewhat stigmatized by not going with them. He has to leave home at 8am and take the train to School A, rather than walking to his local school. We wondered however what his present wishes were, now that he has spent a year and seems to have settled at School A, with a social niche there.
(7) We were told that 91% of pupils at “The School” were presented for the externally adjudicated National 5 Course in S4 this year, and 9% at National 4. There are only two discrete National 4 classes, in French and Maths. Those studying at National 4 level work in classes with National 5 pupils. No pupils were working for National 3 level in 2013 or 2014, and only one pupil presently in S3 was working for National 3 in one subject. In contrast, there were a small number of pupils working at National 3 level in School A. There are specific National 5 classes in some subjects, such as Maths and English. Other classes would have a combination of National 4 and National 5, and National 3 and National 4 level pupils. Depending on the subject and the numbers, a teacher may have to teach pupils at National 3, 4 and 5 levels within the The Childe class.
(8) It was accepted by the witnesses except Witness B that a pupil may be exposed and isolated if he were the only pupil studying National 3. Witness D gave examples of adverse consequences of not offering “a diet suitable for that young person”, such as disengagement, reluctance to attend school, upset and in some cases aggression.
(9) The submission on behalf of “The School” was that they had an objective justification in their refusal to offer The Child a place at the school, in terms of section 15(10(b) of the Act. The legitimate aim was the provision of a suitable education for The Child, having regard to his additional support needs. It was submitted that the school had taken account of their obligations under section 20 of the Act (having regard to their obligations under section 85 and Schedule 13 para 2) to make reasonable adjustments, namely:
s.20(3) … a requirement where a provision, criterion or practice [applied by or on behalf of the Responsible Body] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage;
s.20(5) … a requirement where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid;
The relevant matters are
(a) deciding who is offered admission as a pupil;
(b) provision of education or access to a benefit, facility or service.
After giving full consideration to what adjustments could be put in place for The Child to access the curriculum, the school concluded that it could not meet his needs due to the limited resources available to the support for learning department, the existing calls on these resources, and the budget restrictions imposed by their grant-aided status. As it was a grant-aided school and not an education authority, the school did not have any obligation in terms of the Education (Additional Support for Learning)(Scotland) Act 2004 as amended. The school had taken account of their duties under the Equalities Act, but the refusal to offer him a place was proportionate having regard to the needs of the other pupils, his needs, and the understanding that, were he to attend a local authority school, he would have on-going support from Dyslexia Support Service.
(10) Although Witness C and Witness F were clear in their understanding that Mr and The Claimant were unhappy that the support The Child had been receiving in School B had been reduced, and that they had felt that he required a greater level of support, The Claimant told us that she was satisfied with the limited support that he was currently receiving at School A.
(11) Both Witness D and Witness E stated that their assessment of The Child’s abilities and needs were based on “a snapshot”, and this was also mentioned by Witness C. The Tribunal accepted their evidence as credible and considered that a fuller and more comprehensive assessment of his needs would include observation of The Child in a classroom setting, and up-to-date information from those teaching him daily. We noted that Witness A, who had known The Child throughout his seven primary years told us that she did not recognize The Child from the psychologist description. From her observations she felt that he was more capable than the report suggested. Witness B, although having no direct teaching knowledge of The Child, confirmed that his progress, across the curriculum, had been satisfactory in his first year at School A. She reported that he was working at Level 3 in all curricular areas, Witness F however made reference to the most recent Scottish Survey of Literacy and Numeracy 2013 (published April 2014 and which focused on numeracy), which stated that 35% of all S2 pupils were not yet working atLevel 3 in Numeracy. . He suggested that it was not, therefore, credible that The Child, a pupil in S1, would be out-performing 35% of the cohort a whole year ahead of him.
(12) Although it was suggested that The Child was likely to be working at National 3 Course level when in S4, it was stated by Witness D that as children develop differently it was not possible to definitively predict a pupil’s attainment level in later school years.
(13) In his submissions the solicitor for the claimant referred to The Technical Guidance for Schools in Scotland produced by the Equalities and Human Rights Commission. This Technical
Guidance is prepared and issued by the Commission on the basis of its powers to provide information and advice under section 13 of the Act. It is not a statutory code. It is of evidential value only. It provides explanation and examples to assist in understanding and complying with obligations under the Act. Reference was made in particular to paras 5.43 to 5.49; paras 5.32 to 5.38 and paras 6.64 and 6.29.
(14) The solicitor also referred section 149 of the Act the Equality Act 2010 (Specific Duties)(Scotland) Regulations 2012, and The Technical Guidance on the Public Sector Equality Duty for Scotland. This Technical Guidance has the The Childe status as that of The Technical Guidance for Schools in Scotland. Reference was made in particular to paras 3.7 to 3.8.
(15) It was accepted by the claimant, having regard to the objective justification test, that the meeting of The Child’s additional support needs was a legitimate aim, but it was submitted that the refusal to offer him a place was a not proportionate means of achieving that aim. “Proportionate” (as explained in para 5.35 of The Technical Guidance for Schools in Scotland) means appropriate and necessary.
(16) We accepted the submission of the claimant’s solicitor that “The School” was able to make provision for The Child’s additional support needs, with reasonable adjustments to include auxiliary aids such as computer software and services such as access to the support for learning department. In his report Witness D had noted that The Child would require additional time in work presentations and for exams; short tasks, regular checking and practical and visual support material would be to his advantage; he would require support to ensure he is on track, and where possible alternative approaches to information input and output. Necessary repetitive work would require to be done with guidance outwith class time alongside prepared work programmes differentiated for him in class.
(17) We were told that “The School” had invested in Read and Write Gold software, and was starting to use this throughout the school. Witness E had used some features available from the software, but there are a number of other features which can be used to assist pupils with literacy difficulties. Access by The Child to the software would provide him with an alternative means to reading and writing, for the input and output of information. This is likely to reduce a requirement for individual support from a pupil support assistant.
(18) We had regard to the information of present deployment of Support for Learning Teachers and Pupil Support Assistants set out at R34 of the bundle, and the note that “… the specific support for individuals or groups changes continuously in response to emerging needs and evaluations of children’s progress.” We could not accept that The Child’s identified need for thirty minutes a day, equivalent of three periods a week for reading recovery or “necessary repetitive work” could not be assumed into the department. Support from a pupil support assistant may be carried out as part of a group, rather than discrete one to one support for fifteen periods a week. Again, we could not accept that this could not be assumed into the department and included in the bidding scheme used to identify and assess where, to whom and in what way support is provided.
(19) Although “The School” does not at present have a paired reading scheme with older secondary pupils reading alongside younger secondary pupils, we considered that this could be arranged with little financial impact. The Child would benefit from such a scheme.
(19) In giving evidence about the financial management of the annual budget, Witness F explained that there was always taken into account the need for some contingency planning to cover extra-ordinary costs such as maternity leave or sickness cover. We could not accept that there could not be similar planning to have some flexibility within the support for learning department.
(20) Witness F told us that the school’s policy documents were reviewed on a three yearly basis. Neither the Policy on Assessing Children’s Educational Needs nor the Accessibility Strategy has been reviewed taking into account the public service equality duties.
(21) The solicitor for the claimant submitted that the school had set its level of support resources at a historical level determined by previous funding arrangements, rather than by reference to anticipated levels of demand or need. He pointed out that the Accessibility Strategy (C19 – C22) failed to take account of the change in legislation which now provides that the duty under section 20(5) of the Act (auxiliary aids and auxiliary services) applies to schools, and that the school had not reviewed the policy nor reviewed support staffing and resources to take account of this additional duty. We accepted his submissions that the duty to take reasonable adjustments is an anticipatory duty, and that the school’s assessment of the available resources, both staffing and financial, was reactive, rather than anticipatory.
(23) Whilst appreciating the financial restraints under which “The School” is operating, we were not satisfied that the refusal to offer The Child a place in the school was proportionate. Witness D stated in his report that “… he can be regarded as within the average range, albeit at the lower end. He will need to work hard to keep up in his class group but should be capable of learning from mainstream class teaching regime.” The then Principal Teacher for Support for Learning calculated The Child would need four hours intensive support for reading each week, and fifteen hours support from a pupil support assistant. It is not clear how this was calculated; in P7, at the time, he was receiving funding for three hours support a week, and did not receive nor require (according to Witness A) one to one support from a pupil support assistant in class. In early primary years he had received fifteen hours funded support, but this included support and supervision in the playground to assure his safety, which was no longer needed.
(24) We concluded that there had been discrimination against The Child on the basis of his disability. We determined that he should be offered a place at “The School” to commence in August 2014. As indicated, we have no information as to The Child’s views, and it may be that he may prefer to remain at his present school, rather than change schools. If his parents choose to accept the offer of a place, “The School” must make provision for The Child’s additional support needs in accordance with an up-to-date assessment of his needs taking account of all relevant information from his S1 year at School A.
