Friday this week (18 March 2011) marks the start of discrimination disability claims by pupils and their parents and guardians being heard by the Additional Support Needs Tribunal for Scotland (ASNTS). This change is being introduced by the Equality Act 2010 and is applicable to independent and grant-aided schools as well as education authority schools.
The ASNTS is more accessible for Claimants than the Sheriff Court where claims are currently brought. It is anticipated that the accessibility of the ASNTS will inevitably lead to an increase in claims being brought before it as opposed to before the Courts.
Schools need to be proactive in their awareness as to whether a pupil is likely to be "disabled". A pupil may have additional support needs but may not be disabled, and vice versa. If the pupil is not disabled, they should not be allowed to proceed with a claim for disability discrimination.
If the pupil is disabled, they are protected from being subject to direct and indirect discrimination on grounds of their disability.
Significantly, in addition there is a legislative provision for schools to make reasonable adjustments to accommodate disabled pupils. The reasonable adjustments that must be made are:
- When a decision is being made about who is offered admission as a pupil; and
- When education or access to a benefit, facility or service are provided.
What is of fundamental importance is that the Equality Act also makes provision for reasonable adjustments extending to the provision of auxiliary aids and services, although this provision has not yet been brought into force. The indication is that this will come into force in Scotland before England. Many independent schools charge for auxiliary aids and services but, when this provision comes into force, to charge disabled pupils for making reasonable adjustments would be in breach of the Equality Act. That said, the cost of an adjustment is one of many considerations determining whether the adjustment is "reasonable".
There will be occasions where there will be scope for claims being brought against schools under both the Equality Act and the Education (Additional Support for Learning) (Scotland) Act 2004 before the ASNTS (and, in the case of Equality Act claims, before the Courts). One such example is where a pupil has a co-ordinated support plan and the school fails to provide for the additional support detailed in the plan, in which case the failure to implement the plan could also constitute a failure to make a reasonable adjustment.
Even if a Claimant cannot afford legal representation at the ASNTS and is unsuccessful in their legal aid application, they may receive backing from the Equality and Human Rights Commission.
It is noteworthy that one party could be liable for all or part of the other parties' expenses in certain circumstances including if there is frivolous, vexatious and/or unreasonable raising; or conduct of the proceedings. In addition, the School could be liable for all or part of the expenses of the pupil/parent/guardian where "the disputed decision, failure or information" is found to be "wholly unreasonable".