The Inner House, Scotland’s highest civil appeals court, has issued a significant ruling under the Equality Act 2010, in deciding that a Scottish education authority did not need to meet the costs of an additional year of education for a young adult with autism.
The case came before the Inner House as an appeal by Fife Council against a sheriff’s decision that the education authority was responsible to fund a further year of private schooling beyond the pursuer’s 18th birthday, at a cost of £45,910, and was liable to pay damages of £2,500 in compensation for the stress and anxiety caused by the initial refusal to provide funding. The sheriff’s decision was based on a finding of unlawful discrimination in terms of the Equality Act against the pursuer on the ground of disability.
Education authorities have a duty in terms of section 1 of the Education (Scotland) Act 1980 to provide school education to children and young persons. School age is 5 to 16. A child is a person not over school age. A young person is over school age but under 18. Education authorities also have powers to make provision of school education for those who would no longer ordinarily be entitled to schooling.
The Inner House recognised the tension between the two separate legislative schemes governing education on the one hand, and equality and non-discrimination on the other. The judges found that the education legislation created a clear cut-off point at the age of 18 and that no education authority could be prima facie criticised for refusing to provide school education for someone over that age.
However, the court still had to take account of the pursuer’s disability and the implications of an education authority’s duties under the Equality Act, specifically the public sector equality duty under section 149. The Inner House agreed with the sheriff that in simply applying a blanket policy and refusing to provide school education to those over 18, the Council had indirectly discriminated against the pursuer. Its response had put the pursuer as a disabled person at a substantial and particular disadvantage compared with non-disabled persons whose education had not been hampered by their disability and who would not struggle to transition to further education and/or employment.
The court thought that the education authority could reasonably have taken steps to assist the pursuer, for example by advising him and his mother of the various discretionary powers that would have allowed further funding to be provided. The failure to do so amounted to a failure to make reasonable adjustments in respect of the pursuer.
Nevertheless, the Inner House found that it was not open to the sheriff to make an award for the school fees payable in respect of the additional year at school. This was because the discrimination against the pursuer did not go beyond the failure to advise him of the availability of a bursary or other funding options. Had the education authority done so and had an application for a bursary been made, the Council may or may not have granted it. There was no positive right on the part of the pursuer to have his education funded after he reached 18 and a refusal to do so would not have amounted to a failure to make reasonable adjustments. Therefore, the only element of the financial award that stood was the £2,500 in compensation to the pursuer for the anxiety and upset as a result of the uncertainty caused by the refusal of funding.