Appeal By Jc Against Gordonstoun Schools Limited
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Brodie,Lady Smith |
| Judgment Date | 06 May 2016 |
| Neutral Citation | [2016] CSIH 32 |
| Court | Court of Session |
| Docket Number | XA25/15 |
| Published date | 06 May 2016 |
| Date | 06 May 2016 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 32
XA25/15
Lady Smith
Lord Brodie
Lord Malcolm
OPINION OF THE COURT
delivered by LADY SMITH
in the appeal
by
J C
Appellant;
against
GORDONSTOUN SCHOOLS LIMITED
Respondents:
Appellant: Bain QC; Drummond Miller LLP (for the Govan Law Partnership)
Respondents: M Ross; bto Solicitors
6 May 2016
Introduction
[1] When a sixteen year old female boarding school student was found having sex with a male student on a teacher’s desk one evening, the school Principal decided that he had no alternative but to exclude both of them. The female student had Attention Deficit Hyperactivity Disorder (“ADHD”). Her mother, the appellant, claimed that her daughter (M) was disabled and that the school’s decision amounted to unlawful discrimination.
[2] The remedies sought were:
- A statement that the school discriminated against M.
- A written apology to M and her family.
- Training of school staff and alterations to the school’s discipline policy to ensure that no similar incident occurs in the future.
[3] The Additional Support Needs Tribunal for Scotland (“ASNTS”) had jurisdiction to hear the claim under the Equality Act 2010 (“the 2010 Act”) section 116. They rejected it. They were not satisfied that M was disabled. Accordingly, no question of unlawful discrimination arose.
[4] The claim was presented under the relevant provisions of the 2010 Act. As presented to the tribunal, it focussed on M having ADHD which presented with impulsivity, poor attention and concentration, hyperactivity and difficulty in organising her thoughts and actions, the latter being referred to as impaired executive functioning.
[5] The fact of M having a diagnosis of Feingold Syndrome is also referred to in the claim form but it was not suggested that it gave rise to any separate symptoms that were of relevance to the claim. None of the expert witnesses purported to be experts on Feingold Syndrome.
Background events
[6] Gordonstoun School is a boarding school in the north of Scotland. M (d.o.b 15 January 1997) joined the school in September 2011, as a year 10 student, when she was 14 years old. On her admission, the school were advised that M had ADHD.
[7] ADHD is, put shortly, a neurodevelopmental disorder that affects those parts of the brain that control attention, activity level and impulse control. The respondents conceded that it constituted a relevant mental impairment for the purposes of section 6(1)(a) of the 2010 Act.
[8] During the evening of Monday 4 March 2013, M had sexual intercourse with a male student on a teacher’s desk within the school. They had been in a relationship for some time. Their meeting was pre-planned. It had been organised through an exchange of emails; various emails dating back over more than a year disclosed sexually explicit exchanges having taken place and there were references to prior sexual contact having occurred. At about 6.45pm, when in a state of undress, they were discovered by a member of staff.
[9] The member of staff reported the matter and both M and the male student were suspended immediately. The respondents’ Principal was informed of the incident on the morning of 5 March 2013. Discussion took place within the school throughout that day regarding the appropriate response.
[10] On 6 March 2013, the Principal decided that both M and the male student would require to leave the school with immediate effect. He did not meet with M or with the appellant before reaching his decision. He wrote to the appellant to advise her of his decision that day. In his letter, he invited her to withdraw M so as to avoid there being an expulsion on her record and to limit any difficulty in re-establishing her academic future. He explained:
“The rules about sexual activity at the school could not be clearer and given the relatively public context for this activity on Monday evening, it has been impossible for me to respond in any other way than this.”
[11] The reference to “rules” was a reference to the respondents’ Code of Conduct. It includes a “Relationships Policy” and a paragraph at p.33 headed “Relationships” includes the following:
“Relationships
………
The School’s views on matters of intimacy are clear: schooldays are not a time when a sexual relationship is the right undertaking for an adolescent. There are personal, moral and religious considerations which weigh heavily here and remain the cornerstones of the School’s policy. Acts of sexual intimacy or instances of students being found in an ostensibly compromising position are always dealt with most severely and may result in expulsion. If students are found having, or having had, sexual intercourse, they are likely to be expelled….”.
[12] The Code explains, at p. 20, that the reasons for imposing the sanction of expulsion include “individual acts of gross misbehaviour which may put a student too far outwith the school’s accepted codes and expectations for him or her to remain in the School”.
[13] The appellant agreed to withdraw M from the school.
[14] M’s housemistress told the other students in her house why she had been excluded. That was standard practice. There were two reasons for it: the first was to give them a rational explanation for the expulsion since they would inevitably be upset at the loss of a member of their community, and the second was to stop gossip. In her experience, it helped to do so and students were very responsible about the information once matters had been explained to them.
[15] M was due to sit GCSE exams in the summer term of 2013. Her sister, who had previously been a student at the school, wrote to the Principal on 6 March, “begging” him to let M finish the academic year and sit her exams even if that had to be on the basis that “local rustication” was imposed. In terms of the Code of Conduct, “local rustication” involves the student living outwith the school campus, being allowed to attend lessons in the school but otherwise being excluded from the premises. He responded on 9 March, rejecting her request. He explained that the clarity of the rule that had been broken and the notable way in which it had been ignored were such as to lead him to decide as he had done and “the school cannot risk any blurring of what it has set out as its sexual bounds”. He added that staff would try to support M with work to keep the GCSE process going but she would require to take her exams at another centre.
[16] 4 March 2013 was not the first occasion on which M had had sexual intercourse with a male student; on 16 October 2012, the appellant told the school’s Deputy Principal that M had lost her virginity to a boy at Easter time that year, when she was at his home. The appellant was concerned that, as she understood it, he was making life difficult for M at school. She did not suggest that M’s ADHD had played any part in M’s decision to engage in sexual activity at that time.
M
[17] M’s evidence was provided by way of written statement in which she explained that what happened on 4 March was because she was confused, young and stupid. She confirmed that she and the male student had agreed to meet. She was unhappy and the relationship made her studies good, and made her feel better and more confident; she wanted to be loved and for a man to hold her. She did not think she would get caught. Other girls were excited for her and said “congratulations” after the event.
[18] Medication was prescribed for M before and during the time she was at the school, with a view to treating her ADHD. In the written statement, she explained:
“The Strattera made my mood whacko – I had outbursts of crying or being too happy or too sad..”.
[19] “Strattera” was the name given to a drug prescribed for her.
[20] In a report dated 20 March 2014, Dr Kenneth Aitken, Consultant Clinical Psychologist, opined that M had a behavioural profile consistent with her clinical diagnosis of ADHD. He advised:
“M demonstrates a range of difficulties which are consistent with her clinical condition and which are not easily rectified by medication.”
[21] Dr Aitken gave oral evidence. He had not met M until early in 2014 and so was not able to offer direct evidence about her symptoms when at the school. He offered the view that they would have been more pronounced; that view was not predicated on any particular feature of M’s case but, rather, on general experience of ADHD symptoms tending to ameliorate with age. Regarding the effects of medication, he said that impulsivity and poor planning and other aspects of ADHD were not controlled by medication. Rather, strategies would have to be put in place to help the person cope with these matters which would not be addressed by medical interventions. He also stated that whilst impulsivity could make M do something without thinking of the consequences, it would not preclude her from doing things in a way that involved a degree of premeditation.
[22] Charles Gibb, Chartered Educational Psychologist assessed M and reported on 28 January 2010, when she was 13 years old. In summarising his findings he observed:
“There were no indications with me, in the classroom or from what M’s teachers had to say, of effects associated with ADD or ADHD. M’s work habits and attention control were good. Other than Feingold’s syndrome there were no indications of conditions or syndromes which can affect young people in education. M’s overall presentation was within the wide range that is average for her age.”
[23] The appellant gave evidence about M; the tribunal summarised it at para 6.8:
“(The appellant) gave evidence that M had been awarded a personal independence payment due to her personal care needs. She gave evidence that M needs to be encouraged to wash and needs to have her personal toileting supervised. She indicated that M was on the contraceptive pill as she would be unable to cope with menstruation. She gave evidence that M could manage her own...
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