DDC/2013/01

 

 

DECISION OF THE TRIBUNAL

 

Claim: DDC  

 

Gender: Female     

                    

Aged: 16                          

 

Type of Claim:         Another Issue

 

 

 

1. Claim

 

This is a claim under the Equality Act 2010 for a finding that The Responsible Body have discriminated against the child (hereinafter referred to as “M”) as a result of disability.

 

2. Summary of the Decision

 

The Tribunal find in favour of the Responsible Body.

 

3. Findings of Fact

 

The Tribunal makes the following findings of fact relevant to its decision:-

 

1. The child was born 1998.
2. The child has Asperger’s Syndrome and severe sleep problems. She has a disability in terms of section 6 of the Equality Act 2010.
3. The child is on the role of School A but has an ongoing difficulty in attending school due to anxiety, although this has improved since around December 2013.
4. Since at least March 2012 the responsible Body were aware of the need to try and avoid the child refusing school attendance (T20).
5. An author’s visit to the school that took place on 7 March 2013 had been arranged in November 2012 by the Acting Principal Teacher of English who went on sick leave prior to the event. The visit had not been recorded in the school calendar and the school office was not aware of the planned visit. One or two days before the visit the author contacted the school office who advised the remaining full time English teacher. The said teacher advised his classes of the visit the day before. He was aware of the need to ensure M’s parents were contacted about school events but forgot to contact M or her parents to advise of the visit.
6. The failure to advise M and her parents of the author’s visit on 7 March was a human error.
7. A school sports day took place on 18 June 2013. The teacher who organised the school teacher was new but had been advised that M’s parents should have been informed of the event. The teacher forgot to do so.
8. The failure to advise M and her parents of the sports day on 18 June was a human error.
1. Prior to the time of the two incidents the school were aware that it was important that M’s parents be made aware of events that M might be interested in.
10. It was accepted at that time by the school that it was important to find ways of getting M to attend school.
11. At the time of the two alleged discriminatory acts the practice was to inform pupils in the school and their parents of events in a number of ways, depending on the event, these included letters, emails, text alerts, school newsletters, the school website and pupils being informed while in the school by class teachers at assemblies or on screens within the school.
50. At the time of the two alleged discriminatory acts particular arrangements were in place to ensure M’s parents were aware of school events, in particular relevant staff had been made aware of the need to ensure events were notified to M’s parents.  Events should have been listed in the school calendar and M’s lead professional, who had a particular responsibility to inform M’s parents of the arrangements if necessary, advised.
1000. The arrangements to inform M’s parents of events were substantially complied with.

 

4. Reasons for the Decision

 

Preliminary Matters

 

Two telephone conferences took place records of which are in the bundle. During the first conference call Solicitor for Claimant indicated that the Claimant was only insisting on her claim in respect of two alleged acts of discrimination, in respect of an author’s visit on 7 March 2013 and a sports day on 18 June 2013 (hereinafter referred to as “the two incidents”). She also indicated that the Claimant would not be in a position to dispute the authority’s position that the alleged discriminatory acts were oversights, albeit they could in her submission still be discriminatory acts. Solicitor for Claimant also confirmed that in respect of the fourth remedy sought, “staff training by a named provider on ASD” that what the Claimant was seeking was staff training on the Equalities Act. Both parties were agreed that it would be too stressful for M to give evidence.

 

At the outset of the hearing a small number of additional documents were received into the bundle, namely an email from the responsible body to the secretariat regarding matters raised during a conference call on 13 February 2014 (R47-48), a note of a meeting held on 12 June 2013 (C9-C11) and an exchange of emails between an Employee from the Responsible Body and the child’s parents (C12-13). Thereafter Solicitor for the RB asked if the Claimant would clarify whether she was accepting the accuracy of the document R42-46 (a list of communication with the parents regarding school events from September 2012 to September 2013). It was confirmed that she did.

 

The hearing then proceeded with the Tribunal having studied significant documentary evidence as contained in the bundle and evidence being heard from the following, which evidence is summarised below:-

 

Mum

 

The Claimant is the mother of the child (“M”). She gave evidence that M has difficulties in the classroom, getting annoyed by noise which could be caused by trivial things such as fellow pupils breathing heavily or chewing gum. M had gradually withdrawn from class, with her attendance becoming worse and since January 2012 she had been refusing to attend class. During M’s time at School A matters had become increasingly concerning, initially small things, then not doing homework or having problems with individual teacher’s comments. By her second year in the school things were much worse with a number of very serious incidents culminating in an exclusion in January 2012. After that the assessment process kicked in.

 

The Claimant was referred to T20, the child’s plan which was completed and issued around March 2012 (during M’s second year in the school). The plan included an outcome to “maintain school attendance and progress” and the Claimant explained that by that stage she was having to take more and more time off as a result of issues in the school with M, that it was a constant battle getting M to school and it being like a warzone in the morning.

 

The Claimant was then referred to T29 and T27 in M’s current co-ordinated support plan (it was clarified later in the hearing that it had been issued on 23 April 2013).  This included an objective to increase M’s attendance at school and one aspect of the additional support required was to provide “a range of incentives… to support school attendance” The Claimant explained that by this stage she thought there was a need to completely rethink M’s school experience, she had been saying for months that the school should offer a range of experiences that M can buy into, things like multi-disciplinary trips and outside learning. The Claimant felt there was a lack of creativity on the part of the school and that there was a need to “hook” M in, through things she was interested in such as photography, or outdoor activities.

 

It was explained, with reference to R17 (Physical Education School Report from May 2013) that M was good at P.E., she had gone to a running club for a year or two and was known to be a good athlete. She does lots of walking and horse riding.

The Claimant felt that M had no happy associations with the school and was becoming more and more isolated as when she would meet school friends they would inevitably talk about what was going on at school.

 

In relation to the author’s visit on 7 March 2013 (one of the two incidents that form the basis of the claim) The Claimant said it fitted into everything M’s parents had been asking for, it was the sort of thing M engaged in very quickly, she would have read about it on her PC and that would have made her go. The Claimant advised that she only heard about the event after it had occurred and that she was told it was a great success. The Claimant knows M would have loved it. She felt the school could have let her know what was happening as the parents were having lots of conversations with AB at that time. The Claimant felt someone should have said, M was in school that morning and someone could have stopped her and said what was happening in the afternoon. She said the event of 7 March would have given M a chance to see things differently and to see what was going on. When cross-examined in relation to this event she said she was aware the arrangements for the author’s visit had been in place for months and while she accepted the school had a staffing problem the Claimant felt senior management should have had an overview and someone should have notified M. The Claimant  considered it unreasonable for everybody to forget and the school had been unreasonable in their planning.

 

In relation to the sports day on 18 June 2013 The Claimant explained that M likes running and the outdoors, and it was exactly what she would enjoy. It would also have given her a chance to speak to school staff, perhaps a compliment from the guidance teacher or another staff member that it was good to see M and asking what was going on. There had been a meeting on 12 June (the note being at C9-11) which the Claimant’s father had attended and that would have been the obvious place to mention the sports day. Mr South, the PE teacher, had been at the meeting and spoken to her husband but did not mention the sports day. The Claimant felt the sports day would have given M a lift and something to talk about. A few days afterwards M said “oh it was sports day, no-one told me” The impact of attending is that M would feel part of the school. When asked in cross-examination about the sports day the Claimant said that if it was an oversight why did no one get in touch, the PE teacher was at the meeting on 12 June and AB was in the school at the time.

 

The Claimant explained that M attended an activities day on 27 June, M had looked at what the school was offering and there was nothing she wanted to do so the Claimant suggested a walking activity which M took part in and she had a great day.

 

The Claimant explained that M had missed more recent events that had not been communicated to her by the school, such as a trip to K and a cross country running competition. More positively, M’s attendance has improved recently. She was attending school nearly every day although she did not always make it in the morning. Normally now she would be in school between 9 and 10 a.m. in the past it was later or not at all. This better situation had been since around Christmas, January had been a lot better and the last month had been better still. The communication is better albeit there were still things happening that she felt she was not being properly informed about, such as an offer to go horse riding which the Claimant’s father was not informed about until the night before.

 

At this stage it is perhaps relevant to indicate that Solicitor for the RB raised concerns that the claim had been raised in respect of two alleged incidents of discrimination and that the authority had no notice that the Claimant would raise the more recent events. The Convener indicated that he had allowed the associated question on the basis that the answers might be relevant to the remedy if the claim were successful. Solicitor for Claimant confirmed that this was the basis on which she asked the question.

 

During cross examination The Claimant was referred to various events described in R42-46 (the note of Communication with M’s parents. and the Claimant regarding school events). Given the Claimant had already accepted the accuracy of the document the we were not entirely convinced of the need for the questioning but in very general terms the Claimant accepted that emails or texts were sent of some events but when questioned about the usefulness of certain events for M she felt some of the school’s efforts were misguided. The Claimant also said in cross-examination that she felt the meeting of 12 June was useful in opening teachers’ eyes to the situation and that the meeting had been about fact finding and seeking solutions. The Claimant accepted that there were examples of information and pieces of information being passed on to the parents.

 

Witness A

 

Witness A is the manager a service which supports families of children with disabilities and has been in post since 2000. The services provided include advocacy as well as accompanying parents to school meetings and hospital appointments. During a conference call on 13 February 2014 Solicitor for Claimant advised that Witness A was going to speak to the meeting on 12 June 2013, the our questioning of Witness A focused on that meeting.

 

Witness A has known M since she (M) was very young but has known her in respect of issues at school since M’s second year at School A. She has attended meetings at the school, providing support for the parents since that time.

 

Witness A confirmed the note of the meeting on 12 June (C9-C11) was accurate other than the word “texting” should be “existing” where it appears on the first page but that only detailed what had occurred while the note taker, was present. On 10 June Witness A and M’s father had met AB to discuss the meeting to be held on 12 June. The meeting on 12 June had 3 purposes, (1) to allow the parents to explain how M was, (2) to allow teachers to ask questions of parents to see how they could engage with M, and (3) to enable the school to think of ways to engage M back into education.

 

Witness A’s recollection is that the father of the child spoke first, giving a full account and that the teachers asked question of him. He talked about the things that motivated M, the teachers spoke about where they might be able to re-engage M with tutoring and other subjects where it might not be so easy. There was discussion around what M liked, regarding athletics and sports and there was discussion about anything they could do that was cross curricular. Some of the teachers found the meeting very moving.

 

It was agreed at the meeting that staff would go away and think of suggestions for engaging M that would be put into a plan. Later that same day she attended the family home along with AB to talk about tutoring arrangements.

 

Witness B

Witness B is the principal of the Joint Campus which includes Primary and School A and has been for 5 ½ years. She is currently on secondment, until August 2014. As such she was in her substantive post at the time of both alleged incidents of discrimination.

 

In relation to the author’s visit on 7 March 2013 Witness B explained that the author’s visit had been arranged some months before by the principal English teacher who had then gone on maternity leave. The visit had not been put on the school calendar. M’s class teacher was the only full time English teacher left in the school (a MM) and he had been left with rolling out the curriculum for excellence as well as both developing and delivering the s3 course. Further in February the school received notice of an HMIE inspection. Either the day before or 2 days before the visit the author got in touch with the school office which knew nothing about the visit. The said teacher then contacted the author and discussed what was expected before informing his classes. When it came to Witness B’s attention that the parents had not been informed she spoke to MM and he was aware that M should have been made aware of the event, and treated differently than other pupils who may not have been in the school the day before the event.

 

In relation to the sports day, the summer term is a busy one and the principal teacher of PE delegated organisation of the sports day to a new teacher who he informed should advise M’s parents of the event. The actual day for sports day was only confirmed at relatively short notice. Pupils were only told of the sports day in class with an email only being issued to staff. AB, who was the lead professional for M unfortunately did not see the email until after the event had started.

 

At the time of the incidents AB had particular responsibility for communication with M’s parents, staff being asked to feed into AB who would inform the family.

All school dates should be in the school calendar and AB (at that time, AB no longer being the lead professional for M) should be notified of any events so that he can inform M’s parents if necessary. The school has a variety of means of advising parents of events, including, newsletters, letters, text and email alerts. Before the summer Witness B advised her management team firmly that plans for children in their houses should be followed. Witness B made it clear to her leadership team before the summer (2013) that it was their responsibility to ensure they communicated events back to AB. Office staff were also instructed from the 2013/14 school year to post out certain information to particular children’s parents, including M’s. As of October 2013 MP was fulfilling the role AB had in relation to communication with M’s parents.

 

Witness B advised that the school had received a full day’s training from a specialist with Scottish Autism; it comprised a couple of hours with all the staff before she met with the principle teachers, support teachers and support staff. This was done at one of the August in-service days.

 

Training was also given on the Equality Act at an awareness raising schedule a couple of years ago and Witness B had personally worked through an online training module. The support team had attended a dyslexia conference in Perth. She also spoke of staff achieving and seeking qualifications on additional support needs qualifications and GIRFEC (Getting it Right for Every Child). Witness B was also aware of training on the Equality Act that is being rolled out to all schools in the Responsible Body’s area.

 

Witness B fully accepted that the two incidents that the Tribunal is dealing with should not have occurred but when asked whether the school had apologised she said that she had not had the opportunity but said she was very sorry as were the other staff involved.

 

M spoke to the aforementioned production R42-46 indicating that it was an overview of communications that had gone to all parents as well as communications specifically sent to M’s parents. She said there was a high frequency of communication with the family. She spoke of special arrangements made to assist M such as an Additional Support Needs assistant attending classes if M was in. The school were flexible in trying to get M back to school including arranging tutorials and activities that the staff thought would be interesting for M.

 

Witness C

 

Witness C is employed as a Quality Improvement Manager for additional support needs and primary with the Responsible Body. He has been in post since January 2013 and prior to that occupied a number of senior posts within another Council’s Education department.

 

Similarly to Witness A, the Tribunal had been advised that Witness C was attending to speak to the meeting on 12 June 2013. He first attended a meeting in relation to M on 21 January 2013 with M’s parents and had attended several meetings about M since. He spoke about M’s needs and efforts made to get M, a school refuser, to return to school. He particularly stressed the need for “hooks” that would get M to attend.

 

In relation to the meeting on 12 June he said it was at the parent’s request and that its purpose was to raise awareness among staff. The meeting was led by M’s father and while he responded to questions, approximately 50 minutes of the meeting was spent listening to M’s father (albeit with questions being asked) and Witness A. During the last 10 minutes MP said a lot of positive things and Witness C considered the note of the meeting reflected the points M’s father answered.  He recalled that M’s father talked about M’s likes and dislikes, what is important to her. He was concerned that staff would listen and think about ideas within their subject areas of anything that would hook M’s interest once back in school. Witness C was clear that the purpose of the meeting was to give an update on M’s health, of the challenges at home and to provide a raised understanding. It was not a solution focused meeting and only in the last 10 minutes was there “a degree of interactivity” albeit points were raised as M’s father “went along”.

 

Submissions for the Claimant

 

Solicitor for Claimant extremely helpfully provided us with very full written submissions, supplemented by some further submissions mainly related to parts of the evidence. These submissions are summarised below.

 

Solicitor for Claimant referred to the relevant sections of the Equality Act 2010 (“the 2010 Act”) and all further references in this decision to sections, paragraphs or schedules are references to the 2010 act unless otherwise stated.

 

Solicitor for Claimant submitted that it was accepted M was a disabled person in terms of section 6. Thereafter she referred to what we also considered to be the relevant parts of the act, namely section 20(3), section 21, paragraphs 2(2), 2(3)(b)(ii) & 2(4)(b) of schedule 13, section 85(2)(b)(d) and (f), section136 and schedule 17 paragraph 9 of the act. As we, as subsequently described, accept Solicitor for Claimant referred to the correct parts of the act each of these sections are set out for ease of reference below:-

 

S 20 (3) The first requirement is a requirement, where a provision, criterion or practice of A's 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 21 Failure to comply with duty

(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.

 

85 Pupils: admission and treatment, etc. (In so far as referred to)

(2) The responsible body of such a school must not discriminate against a pupil—

(b) in the way it affords the pupil access to a benefit, facility or service;

(d) by not affording the pupil access to a benefit, facility or service;

(f) by subjecting the pupil to any other detriment.

 

S136 Burden of proof (In so far as relevant)

(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5) This section does not apply to proceedings for an offence under this Act.

(6) A reference to the court includes a reference to—

 

 (f) an Additional Support Needs Tribunal for Scotland.

 

Schedule 13 (2) (In so far as referred to)

 

(1) This paragraph applies where A is the responsible body of a school to which section 85 applies.

(2) A must comply with the first and third requirements.

(3) For the purposes of this paragraph—

(a) the reference in section 20(3) to a provision, criterion or practice is a reference to a provision, criterion or practice applied by or on behalf of A;

(b) the reference in section 20(3) or (5) to a disabled person is—

(i) in relation to a relevant matter within sub-paragraph (4)(a), a reference to disabled persons generally;

(ii) in relation to a relevant matter within sub-paragraph (4)(b), a reference to disabled pupils generally.

(4) In relation to each requirement, 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.

 

Schedule 17 paragraph 9 Powers

(1) This paragraph applies if the Tribunal finds the contravention has occurred.

(2) The Tribunal may make such order as it thinks fit.

(3) The power under sub-paragraph (2)—

(a) may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person of any matter to which the claim relates;

(b) does not include power to order the payment of compensation.

 

Solicitor for Claimant submitted that the question for the Tribunal was “did applying the existing practice of, firstly, informing pupils about the author event on 7 March 2013 via school-based presentation and, secondly, informing pupils via school-based presentation about the sports day on 18 June 2013 amount to two failures by The Responsible Body to make reasonable adjustments in terms of section 21 of the Equality Act”.

Four matters required to be considered namely:

 

1. What is the provision, criterion or practice?
2. What is the substantial disadvantage arising?
3. Could the disadvantage be avoided by making reasonable adjustment?
4. Was it reasonable for the School to take this step?

 

1. What is the provision criterion and practice?

 

Solicitor for Claimant was clear in submissions that she regarded each separate incident of informing pupils about the two school activities on 7 March and 18 June 2013 as one off-decisions that amounted to a practice. This appeared to be a change from the position described in paragraph 14 of the statement of case (C3). When questioned on this Solicitor for Claimant advised that at the point of drafting she was not aware of how the parents were informed of the two events and had at that stage kept “it as wide as possible”. She also said that the said practice could also be “the way that education, or access to any benefit, service or facility is offered or provided”.

 

She submitted that “provision”, “criterion” or “practice” not being defined in the act the Tribunal should have regard to the Equalities and Human Rights Commission guidance “ What equality law means for you as an education provider: schools” at page 21 where guidance is given on what can be interpreted as amounting to a “provision”, “criterion” or “practice”.

 

2. What is the substantial disadvantage?

 

Solicitor for Claimant referred to the statutory definition in section 212 (1) of the Act that substantial was “more than minor or trivial”. She also referred to page 26 of the said guidance that expands on this definition stating among other things that the level of disadvantage created by a lack of reasonable adjustments is measured in comparison with what the position would be if the disabled pupil in question did not have a disability.

 

Solicitor for Claimant then referred to the evidence in relation to substantial disadvantage. M had a history of school refusal and the problem of M’s attendance at school was reflected in her child plan at T20 and co-ordinated support plan at T27 and it was acknowledged in the plans and in evidence that, there was a need to try and hook M back into school. M being a keen reader, the event on 7 March 2013 would have provided an opportunity to encourage M back into school. M was placed at a substantial disadvantage as she was not provided the same opportunity as her non-disabled peers, who were present at the school. The activity was important to M given her negative associations with the school. Her confidence levels were low due to her absence, which resulted in her not having the same learning opportunities as her non-disabled peers. Positive associations could have been used to improve her attendance, given her attendance records and the known difficulties in respect of her disability.

 

In relation to the sports day on 18 June 2013 M was again placed at a substantial disadvantage because she was not given the same opportunity as her non-disabled peers. It was a missed opportunity in terms of providing positive associations with school. It would have been an opportunity for school staff to engage with M at a more relaxed event, which seems to be of great importance to M. M was going through a particularly difficult period at that time and attendance would have allowed school staff to say to M that they were concerned about her. The activities day which M attended on 27 June 2013 highlighted the importance of working with the parents.

 

The school seemed to have tried various methods to get M to school but despite the Claimant saying there was a need to invite M to the school on several occasions, on these two occasions the school had failed.

 

3.  Could the disadvantage be avoided by making reasonable adjustment?

 

The disadvantage could have been avoided by the Responsible Body advising M’s parents of the events. AB was the lead person in contact with the parents and part of his role was to encourage M back into school. Given he had regular contact with the parents, contact could have been made by him and given there was mention in both the child’s plan and the co-ordinated support plan the School should have anticipated how to address this issue.

 

4. Was it reasonable for the School to take this step?

 

Solicitor for Claimant referred to page 27 of the said guidance. She submitted the question of reasonableness was an objective test with reference to (T v OL Primary School, per Deputy Judge Goudie QC, [2005] EWHC (Admin), the terms of section 21(2) of the act and the Technical Guidance for Schools in Scotland produced by the Equality and Human Rights Commission which provides at paragraph 6.25 on page 65 that 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” and at page 25 “you cannot justify a failure to make a reasonable adjustment; where the duty arises, the issue will be whether or not to make the adjustment is “reasonable” and this is an objective question for tribunals to ultimately determine.

 

In Solicitor for Claimant’s submission it is not relevant that other reasonable adjustments made should be taken into consideration, as they are not relevant to whether the two reasonable adjustments are reasonable. The duty is anticipatory in nature with the onus being on the responsible body to establish the reasonableness of the actions taken.

 

The school had been aware of M's school refusal since March 2012 and should have taken steps to address the matter. The proposed communications strategy provided a clear communication structure, why couldn’t that have been put in place earlier?

Solicitor for Claimant then referred to factors in the said technical guidance which should be considered in relation to what is classed as a reasonable adjustment, these being:-

 

1. The extent to which any particular step would be effective in overcoming the substantial disadvantage suffered by the disabled pupil.
2. The extent to which support will be provided to the pupil under the Education (Additional Support for Learning) (Scotland) Act 2004.
3. The resources of the school and financial implications.
4. The practicability of the adjustment
5. The effect of the disability on the individual.

 

Each factor Solicitor for Claimant suggested was established in the Claimant’s favour by reference to the facts.

 

Solicitor for Claimant then referred to the remedies being sought as:-

 

1. Formal declarator that the Responsible Body unlawfully discriminated against M, in respect to, firstly, the author event on 7 March 2013 and, secondly, the sports day on 18 June 2013.
2. An apology to M and to her parents by the Responsible Body in line with the document “our guidance on apology” by the Scottish Public Services Ombudsman.
3. Order the Responsible Body to comply with the communication strategy as set out in R47 subject to MP, Guidance Teacher, replacing the current lead professional.
4. The Communication Strategy to be reviewed prior to the end of the Easter term, by 4 April 2014
5. Training to be given to all school staff, including the senior management team at the School, in respect of the school’s obligations under the Equality Act 2010 to be delivered by an external provider.

 

Submissions for the Responsible Body

 

Solicitor for the RB started his submissions by referring to sections 19 and 20(3) of the act, making the point that the starting point should be whether there is a “pcp” (provision, criterion or practice) which causes M a difficulty. What is suggested in the Claimant’s case statement is that the Responsible Body failed to make adjustments and paragraph 14 of the case statement (C3) goes on to identify a practice. He suggested that a reasonable interpretation of what the paragraph is saying is that to know what is going on in the school you have to be in it.

 

The Convener put to Solicitor for the RB that the Claimant’s Solicitor was now saying each separate incident was a practice, with her authority for that position coming from page 21 of the guidance (outlined above). Solicitor for the RB responded that he would say they were not decisions but omissions. The practice was to advise of events in variable ways but it was an omission not a decision to do something.

 

Solicitor for the RB submitted that R42-46 (the note of Communication with M’s parents regarding school events) goes into detail about the efforts to communicate events, you don’t need to be in school, there are text alerts. There are a number of ways by which families or pupils are alerted to events. He noted that the Claimant accepted the terms of R42-46 and the general proposition that you do not have to be in the school to find out about events. If it is accepted that there was no pcp that could be identified that caused any difficulty to M the claim must fall. The Tribunal could conclude that no pcp has been identified. In his submission it was wrong to isolate two individual matters and isolate their circumstances, a better approach is to look at all that is done for M and he suggested there was a considerable amount of attention given as to how to help and interest M.

 

From the outset the responsible body’s position is that mistakes have been made but that was not grounds to conclude that there was discrimination. It is unfair to conclude that the two individual incidents are indicators of discrimination – people do forget. Indeed the Claimant forgot something in their original claim which referred to three alleged incidents, one being withdrawn. People can make mistakes.

 

The Responsible Body consistently accepted errors were made but that does not mean no adjustments were made. What is criticised or provided for against is someone failing to make an adjustment, not forgetting about one. In Solicitor for the RB’s submission no pcp had been identified.

 

If the Tribunal were to conclude that a pcp has been identified then his esto argument is to argue that a proper adjustment had been made to take account of the difficulties and it had been followed through, with two unfortunate oversights. In his submissions proper adjustments had been made. The school identified activities that it thought would interest M and in general terms had gone to considerable trouble to help M. Solicitor for the RB suggested that it was not appropriate to take two isolated incidents and regard that as an indicator of discrimination. In his submission people should be allowed to make a mistake without it being labelled as discrimination.

 

It was further submitted that M was categorised as a interrupted learner, not at school all the time and accordingly it was not clear what the substantial disadvantage was.

Solicitor for the RB then addressed us on remedies but given our decision it is not necessary to repeat those submissions.

 

Decision

 

With one small yet significant exception we accepted Solicitor for Claimant’s submissions on the law and the relevant sections of the Equality Act 2010. So we accepted that for the claim to succeed we had to consider the following:-

 

1. What is the provision, criterion or practice?
2. What is the substantial disadvantage arising?
3. Could the disadvantage be avoided by making reasonable adjustment?
4. Was it reasonable for the School to take this step?

 

The first question was accordingly to consider what is the provision, criterion or practice within the meaning of section 20 (3) of the act and on considering this question we disagreed with both the Claimant’s representative’s interpretation of the law and of the facts.

 

The Claimant’s representative argued that the “practice” was two separate one off decisions and derived authority from page 21 of the Equalities and Human Rights Commission schools guidance quoted above which provides that:-

 

“”provision” “criterion” or “practice” are not defined in the Act but can be interpreted widely and include

 

• arrangements (for example, for deciding who to admit)

 

• the way that education, or access to any benefit, service or facility is offered or provided

 

• one-off decisions

 

• proposals or directions to do something in a particular way

 

It seemed to us that the above passage from the guidance could be interpreted in one of two ways, either any of the terms “provision”, “criterion” or “practice” could include each of the examples given, or, the examples given relate to at least one of the three terms (provision, criterion or practice). We considered the latter interpretation to be the correct one given the former interpretation does not accord with the normal meaning of practice which is defined in the Oxford English Dictionary as “habitual action or carrying on”. A practice is not a one-off event or decision; it is something that by definition must repeat over a period of time. Accordingly we could not conclude the two one-off decisions could amount to a “practice”. Further we accepted the Responsible Body’s submissions that no decisions were taken in respect of the two events, rather in both instances there was an omission.

 

Notwithstanding the foregoing, we did consider what the practice would be as a matter of fact. Given the claim relates to alleged failings of the Responsible Body to contact M’s parents in respect of the two events, the practice to be considered is either how events were notified to pupils in general or how events were notified to M’s parents. The evidence demonstrated that the practice in place for pupils at the time of the events was to inform parents by a variety of means, by advising pupils in school, sending letters home, newsletters and text alerts. The practice in place for M’s parents included more use of email, meetings and communication from the lead professional, AB who staff were required to notify of events and which he would then communicate to M’s parents. This was evidenced by production R42-46 as well as the evidence of the Claimant and Witness B. The evidence clearly showed that for the most part this practice had been successful. If the practice to be considered was that in place for other pupils then clearly adjustments had been put in place to prevent M suffering any substantial disadvantage from the practice. If the practice to be considered was how events were notified to M’s parents the question of adjustments does not arise as there was no substantial disadvantage from the practice. Either way the practice cannot result in a successful claim.

 

We noted Solicitor for Claimant’s submission that the practice could be “the way that education, or access to any benefit, service or facility is offered or provided.” However this submission does not resolve the difficulty that in our view a practice must be more than a one off event or that the practice in this case could not result in a successful claim as described in the preceding paragraph.

 

 

Finally, we would accept that if failures to adhere to the planned arrangements were sufficiently regular there must come a point when the practice would alter but we did not consider that the two failures, on each occasion being caused by human error mitigated by peculiar circumstances, were sufficient in this case when weighed against the arrangements largely working.

 

 

For these reasons the claim must fail.

 

Given the foregoing we do not require to consider the other questions or remedies. However we wish to record that we were surprised that the Responsible Body had, as at the date of the hearing, not apologised for the two incidents. It was accepted by the Responsible Body that on both occasions M’s parents should have been notified of the events. During the conference call on 22 September 2013 the Responsible Body’s representative indicated that it would be prepared to issue an apology and Witness B clearly expressed in her evidence that both she and the particular staff involved were very sorry. That being the case we are unclear why an apology has not been issued to M’s parents and recommend that the Responsible Body give consideration to issuing one now.