E.s. As Parent And Legal Representative Of L.s. V. K. School
| Jurisdiction | Scotland |
| Judge | Sheriff C.G. McKay |
| Court | Sheriff Court |
| Date | 08 May 2009 |
| Docket Number | B1602/07 |
| Published date | 11 May 2009 |
B1602/07
JUDGMENT
OF
TEMPORARY SHERIFF PRINCIPAL
COLIN G McKAY
in the cause
ES, as parent and legal representative of LS
APPELLANT / PURSUER
against
K School RESPONDENTS / DEFENDERSGLASGOW, 8 May, 2009.
The Sheriff Principal, having resumed consideration of the appeal, Allows same; Recalls the interlocutors of the Sheriff complained of dated 30 September and 30 October 2008; before answer, allows to parties a proof of their respective averments but excluding therefrom the following averments upon Record, namely;
(one) in Article 9 of Condescendence from and including the word "Behaviour" in line 6 to and including the word "Further" at the beginning of line 16;
(two) in Article 10 of Condescendence the term "Section 28B(1)" where it occurred in line 4;
(three) in Article 11 of Condescendence, the word "Further" where it occurs at the beginning of line 1; and from and including the words "The effort" where they occurred in line 2 to and including the word "Further" where it occurs in line 11;
Assigns the cause to the Diet Roll of
for the purpose of assigning a diet of proof; Reserves the question of the expenses of the Appeal; and decerns.
Temporary Sheriff Principal
NOTE:-
(1) This is a summary application made in terms of the Disability Discrimination Act 1995 as amended by the Special Education Needs and Disability Act 2001 ( the amended 1995 Act hereinafter referred to as "the Act") in which the Appellant and Pursuer, as parent and legal representative of her son, seeks a decree of declarator that the Respondents and Defenders, the proprietors of a school, and as such the "responsible body" for the school in terms of the Act, discriminated against her son; seeks a decree of reduction of a decision to exclude her son from the school; and an order for re-admission of her son to the school. After sundry procedure, a record was made up and a debate took place before the Sheriff on 20 and 21 August 2008. On 30 September 2008 the Sheriff issued a judgment in which he sustained the Defenders' first plea-in-law, a plea to relevancy and specification, and dismissed the action. Expenses were determined on 30 October 2008 when the Pursuer's liability was modified to nil. Against this judgement the Pursuer has appealed.
(2) At the outset Mr Nesbit, for the Appellant, advised me that the she no longer insisted in her appeal so far as her application fell under Section 28B(1) of the Act but, as set forth in the Note of Appeal, maintained that the Sheriff erred in law in dismissing the application so far as falling under Section 28B(2) and Section 28C. In addition, Counsel for the Respondent informed me that in the event the appeal was allowed then parties were agreed in seeking a proof before answer but under deletion of the averments as I have recorded in my interlocutor.
(3) I heard the appeal on 3 February and 19 March 2009. In the course of the appeal reference was made to the following authorities:-
D v Bedfordshire County Council & Another (2008) EWHC 2664 (Admin);
R v Governing Body of Plymouth High School for Girls (2004) EWHC 1923 (Admin);
Governing Body of X School v SP and Sendist (2008) EWHC 389 (Admin);
McAuley Catholic High School v CC, PC & Sendist (2003) EWHC 3045 (Admin);
Aberdeen Development Company v Mackie, Ramsay & Taylor 1977 SLT 177;
Taylor v Glasgow City Council, judgment of Sheriff W Totten, dated at Glasgow 16 November 2006;Gibson v Strathclyde Regional Council 1992 SCLR 902.
Lewisham London Borough Council v Malcolm (2008) 3 WLR 194
On 19 March I heard further submissions in relation to two other cases,
T v Governing Body of OL Primary School and SENDIST [2005] EWHC 753 (Admin); and
Governing Body of PPC v DS and others [2005] All ER (D) 64.
I made avizandum on that date.
Reference was also made to the Act and the Code of Practice for Schools under Part 4 of the Act. The relevant provisions of the Act are set out in Appendix 1 annexed to this judgement. Copies of all authorities, the Act, the Code of Practice for Schools (UK wide) - a statutory Code promulgated by the Disability Rights Commission (now within the Commission for Equality and Human Rights) - and Guidance for Scotland (non statutory) on the Code were made available to the court.
The Note of Appeal
(4) I have incorporated this as it sets forth the averments which the Appellant maintains justifies her case under Section 28B(2) and are also those averments subject to the attack by the Respondents related to relevancy and specification. The Note of Appeal is in the following terms,
"The sheriff erred in law in finding that the case was bound to fail and dismissing same in relation to the duties contained in 28B(2) and 28C(l)(b) of the Disability Discrimination Act 1995 ('the DDA'), for the following reasons:
i) The Sheriff dismissed the action on the basis that the two averments he refers to on paragraph 12 of the note" (Article 9 of Condescendence) "were insufficient to allow a Section 28B(2) case to go to proof or proof before answer. However, even after deletions and amendments to the Record agreed during the course of the debate, the Pursuer's averments in relation to that "reasonable steps" duty are substantial and include the following averments in article 10 of condescendence:
"In particular they failed to wait/or the outcome of the medical assessments before taking disciplinary action. It would have been reasonable to wait until the end of the academic year before taking disciplinary action. It was unreasonable to take a decision on whether or not to permanently exclude the child little more than a month after the Pursuer had informed the school she was arranging to have the child assessed for ADHD. They failed to request assistance from East Dunbartonshire Council with regard to L's additional support needs in terms of Section 7 of the Education (Additional Support for Learning) (Scotland) Act 2004. Further they discriminated against L in failing to take reasonable steps. The Defenders' senior management team and the staff of its junior school failed to carry out sufficient reasonable adjustments before excluding L. They failed to await the expertise and support of outside agencies, such as assistance from ADHD Direct or input and guidance from a psychiatrist and other assistance. They failed to draft and implement an Individual Education Plan for L and failed to produce an individual learner profile to support him. They failed to work collaboratively with L's parents and failed to discuss how his behaviours at school mirrored those at home and what strategies could be successfully implemented between home and school. They failed to provide support during unstructured activity times, such as the provision of a quiet place to go or structured activities. They failed to offer L counselling. They failed to offer L suitable and appropriate guidance and pastoral support. They failed to offer L a mentor and failed to offer him a key worker or trusted member of staff to whom he could talk. They failed to wait until such time as a diagnosis of L's condition was known before excluding him from the Defenders' school. They failed to implement a positive behaviour management programme and a system of rewards. They failed to implement an escalating sanction system to assist L to understand the seriousness of his behaviours. They failed to manage L 's peer relations and support him in avoiding conflict situations."
The Pursuer's pleadings also include the following averments in article 11 of condescendence:
"They failed to take reasonable steps not to place L at a disadvantage as compared with other pupils who were not disabled with ADHD. The Defenders ought to have waited for the outcome of the assessments prior to taking a decision on exclusion from school. Had the Defenders done so then their decision would have been likely to have been different. The Defenders would have implemented appropriate strategies and supports to allow L to remain at the school and to complete his secondary education successfully."
These averments set out the Pursuer's "reasonable steps" case in full and the Sheriff erred in limiting himself to consideration of the averments laid out in paragraph 12 of the note.
ii) The Sheriff, in paragraph [12] of the note states that "The latter sub-section [i.e.28C(l)(b)] is the one which might, in my view, have afforded L a remedy, but, as I have stated what is pled in support of a case under section 28C(l)(b) is clearly insufficient to amount to a relevant case." In light of the pleadings referred to above, the Sheriff erred in concluding that those pleadings were insufficient to amount to a relevant case. Further, having concluded that the Pursuer's son may have a remedy in terms of the Act, the Sheriff erred in dismissing the case following debate.
iii) The Sheriff erred in reaching the conclusions he did at paragraph [14] of the note. Applying, as he did, Jamieson v. Jamieson 1952 SC (HL) 44 the Sheriff erred in concluding that this case is one which is bound to fail. It cannot be said that the case would necessarily fail even if all the Pursuer's averments (as referred to above) were proved."
(5) The appeal is effectively in two parts. Firstly, does the Act allow of an action to reduce a decision to exclude a child from a school based upon the provisions of Section 28B(2) and 28C (the "reasonable adjustments" or "reasonable steps" provisions) or can such a reduction be based solely and exclusively upon Section 29B(1), (the "less favourable treatment" provisions)? This latter alternative was the Respondents' primary submission upon which they maintained the appeal should fail. The second part of the appeal was related to other relevancy and specification matters in the pleadings based upon a case under Section 29B(2).
(6) In paragraph (i) above the Appellant refers to "deletions and amendments to the Record agreed during the course of the debate". I should make it clear that the appeal was...
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