This interesting and useful case, brought by a parent against Edinburgh Council under the Equality Act and upheld on appeal by the Court of Session, is analysed by Iain Nisbet on his Additional Support Needs blog.
Education authorities in Scotland should be paying attention at the back, following a decision under the Equality Act 2010 and its application to the planning of additional support for disabled pupils. A recent Tribunal decision (now upheld on appeal) found that a failure to provide an adequate Co-ordinated Support Plan (CSP) amounted to unlawful disability discrimination by the Council.
The duty to provide a CSP is not found in the Equality Act 2010 but in Section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004. The fact that a failure to comply with a duty in this unrelated statute can amount to discrimination is of particular importance – especially for pupils who are both disabled and have additional support needs. Alert readers may recall the case of DM v. Fife Council in which the Council’s failures under the post-school transition duties under the 2004 Act, led to a finding of discrimination under the 2010 Act.
Iain goes on to comment:
This case is a boost for the much maligned CSP, and a warning shot for those authorities who increasingly see them as irrelevant. While the numbers of children with additional support needs have been increasing significantly in Scotland in recent years, the number of Co-ordinated Support Plans have been plummeting (as few as 0.1% of pupils in some areas)! As I have argued previously, there is life in the old CSP yet …
Failure to comply with the authority’s legal duties in relation to a CSP may now attract the attention of the Tribunal, not just in terms of the additional support needs legislation, but also under the Equality Act 2010. This is significant because the remedies available to the Tribunal in such cases are much broader, and likely to include orders which may include a require for wholesale changes in policy, staff training or – even worse – an apology!
Where the CSP is for a child placed by the authority in a grant-aided or independent special school, any Equality Act case would require to be brought in the Sheriff Court, rather than the Tribunal, bringing with it the prospect of compensation as well.
The parent who brought this case is to be congratulated on her grit and determination as her family was treated abysmally by the council. Yes, we know them!