Appeal By Dm Against Fife Council
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lady Paton,Lord McGhie |
| Judgment Date | 11 March 2016 |
| Neutral Citation | [2016] CSIH 17 |
| Court | Court of Session |
| Date | 11 March 2016 |
| Published date | 11 March 2016 |
| Docket Number | XA152/14 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 17
XA152/14
Lady Paton
Lord Bracadale
Lord McGhie
OPINION OF LADY PATON
in the appeal
by
DM
Pursuer and respondent;
against
FIFE COUNCIL
Defenders and appellants:
Pursuer and respondent: McKendrick; Drummond Miller (for Govan Law Centre, Glasgow)
Defenders and appellants: J Scott QC, Stalker; Balfour & Manson LLP
11 March 2016
Complaint of discrimination in education: age and/or disability
[1] The pursuer was born on 6 June 1995. He has an autistic spectrum disorder and dyspraxia. He is disabled within the meaning of section 6 of the Equality Act 2010. The defenders, as the local education authority, were responsible for his school education. In that context, section 29(3) of the Education (Additional Support for Learning) (Scotland) Act 2004 provides:
“In this Act … references to a child or young person for whose school education an education authority are responsible are to any child or young person being, or about to be, provided with school education –
(a) in a school under the management of the education authority, or
(b) in pursuance of arrangements made or entered into by the authority.”
[2] Initially the pursuer attempted to undertake his secondary school education at a mainstream school under the management of the defenders, namely Waid Academy, Anstruther, Fife. However his disability made that impossible for him. In January 2010, he began attending Butterstone School (also known as “The New School”). Butterstone is an independent private school catering for children and young persons with special educational needs. After a dispute between the defenders and the pursuer and his family concerning a placing request (including an action in the sheriff court in which the pursuer and his family were successful), the defenders undertook responsibility for the payment of the pursuer’s school fees from 16 May 2011 onwards.
[3] In 2013, the pursuer was approaching his 18th birthday, 6 June 2013. His mother Dr KM and the head teacher of Butterstone considered that he needed a further year at the school. It was hoped that would enable him to transition to further education and/or employment. Accordingly by letter dated 16 April 2013, Dr KM requested that the defenders continue funding the pursuer for 2013/14 (£43,410 for the year): appendix pages 3-4, and 6; electronic bundle pages 161-2 and 164. In particular she explained:
“I am writing to request a further year funding for my son … who is currently attending The New School Butterstone.
D is now doing well at school and working towards his qualifications this summer. There are a number of courses he is not going to be able to finish in time for this academic session and he would benefit greatly from another year at school to complete these programmes. The transition back into school was not easy for D and it has taken him considerable time to get him settled and working well.
I am enclosing a letter from the head teacher at The New School Butterstone which outlines how D would benefit from another year at school. We feel that D missed a lot of education time through the difficulties he had at Waid and in making the transition back into education. He is making excellent progress and is ambitious in his studies. He needs another year at school to achieve a level that would allow him to go on to successful further study in an area that is of interest to him. I hope you can support D in achieving his potential through another year at school …”
Dr KM enclosed a letter from the head teacher supporting her request. The head teacher had formed her own view, and also had professional advice from Charles Gibb, educational psychologist (appeal print page 38; electronic bundle page 41).
[4] By letter dated 23 May 2013, the defenders refused Dr KM’s request, advising that their statutory obligation to provide education for a child came to an end when the child reached the age of 18. They explained that they had given careful consideration to the request and continued (appendix page 5; electronic bundle page 163):
“… The original request to place D at The New School, and your successful appeal against the refusal of that request, were made under the Education (Additional Support for Learning) (Scotland) Act 2004, which makes provision for meeting the additional support needs of children and young persons for whose school education the education authority are responsible. Since turning 16 D has been a young person, the definition of which within the Act is ‘a person … who has not attained the age of eighteen years’. As D will be 18 on 6 June 2013 the Council will no longer be responsible for his school education. Consequently I do not think that your request can be treated as a placing request under the Act. The Council has no duty to continue to fund D’s placement at The New School. We will therefore not fund his placement for an additional year as you request …”
[5] The pursuer’s fees for 2012/13 had been paid in advance. He was able to remain at Butterstone for the final three weeks of term until 28 June 2013.
[6] The pursuer then raised a summary application against the defenders in Kirkcaldy Sheriff Court, averring that their refusal of 23 May 2013 constituted unlawful discrimination against him on the basis of age and disability, contrary to the Equality Act 2010 as set out in the initial writ (appendix page 12 et seq; electronic bundle page 170 et seq). Reference was made to the 2010 Act, inter alia section 29(2) and (7) and sections 20‑21. In particular it was averred that:
“13. The pursuer is at a substantial disadvantage compared with non-disabled students in relation to the practice of leaving school age at age 18, having completed 6 years of secondary education, and the defenders’ policy of not providing funding for schooling beyond that. Because of his disability, he has not been able to attain within the normal time the level of academic, social and emotional preparation needed to progress to college, but it is reasonably expected that he can do so with a further year’s attendance at The New School. Funding this additional year would therefore be a reasonable adjustment to the defenders’ usual provision and practice.
14. In failing to allow the pursuer to remain at The New School for a final academic year, in the face of all the professional advice available and notwithstanding the detrimental effects identified, the defenders have failed to make reasonable adjustments to avoid said substantial disadvantage to the pursuer.
15. There is nothing in law which prevents the defenders from continuing to fund the pursuer’s education at The New School for a further academic year. Figures provided by the Council indicate that in each of the previous five years for which figures were available (September 2008 through September 2012 school censuses), no fewer than 8 and as many as 18 pupils aged over 18 were attending Fife mainstream schools. Thus the defenders clearly have power to fund schooling beyond the age 18, indeed it is their normal practice to do so to the end of the academic year following the pupil’s 18th birthday.”
[7] The initial writ craved the court to grant declarator that the defenders had unlawfully discriminated against the pursuer contrary to the Equality Act 2010; to ordain the defenders to implement their duties in terms of the 2010 Act by providing funding to allow the pursuer to remain at the school (including implement ad interim); and to grant decree against the defenders for payment to the pursuer of £8,000 with interest from 23 May 2013 for the anxiety, frustration and upset caused by the uncertainty regarding his future.
[8] The pursuer’s maternal grandfather provided a loan for the school fees for 2013/14 (payable in advance of each term: appendix pages 9 to 11; electronic bundle pages 167 to 169). The pursuer was accordingly able to return to Butterstone on 28 August 2013 when the school year 2013/14 began.
[9] Meantime the pursuer’s summary application proceeded in the sheriff court. The pleadings were adjusted at some stage so that the craves were for payment of an amount equivalent to the school fees for the year 2013/14 together with a sum for upset and distress.
[10] On 28 August 2013 (the day of the pursuer’s return to school) there was a hearing on interim orders before Sheriff McCulloch. During submissions, the pursuer’s solicitor suggested that the defenders might consider awarding the pursuer an allowance or bursary in terms of section 49 of the Education (Scotland) Act 1980. The sheriff requested the defenders to consider that matter. The defenders undertook to do so.
[11] Subsequently by letter to the pursuer dated 3 October 2013 (appendix pages 7-8, electronic bundle pages 165 to 166), the defenders refused to grant the pursuer funding by way of a bursary. In their letter, they explained:
“As you are aware, your legal proceedings against Fife Council called in court on [28] August. At that hearing, it was suggested by your solicitor that funding for your attendance at the New School for the session 2013 to 2014 could be provided under section 49(2) of the Education (Scotland) Act 1980. The sheriff asked Fife Council to proceed on the basis that such a request had been made.
An allowance granted under section 49(2) would be a bursary granted by the council as Education Authority, which would be subject to the rules set out in the Education Authority Bursaries (Scotland) Regulations 2007/149.
I have given careful consideration to your request and to the reasons you have given for making it. I have also taken account of the professional advice of our educational psychologist. The education authority is given the discretion to grant or refuse such payments. I have for the following reasons decided to refuse your request:
- A considerable sum of money (£87,930) has already been expended by the Council in supporting your...
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