Appeal judges overturn sheriff’s ruling that paying for private schooling of disabled 18-year-old was a ‘reasonable adjustment’

A young person with autism who was granted decree against a local authority to pay for a further year of his education at a private school for pupils with special educational needs after he turned 18 has seen the decision overturned on appeal.

Judges in the Inner House of the Court of Session ruled that while a sheriff was entitled to find that the pupil was the victim of “indirect discrimination” as a result of his disability, it was “not open” to the sheriff to make an award for school fees of more than £43,000.

Lady Paton, Lord Bracadale and Lord McGhie heard that the pursuer “DM” raised an action against Fife Council seeking declarator that the defenders had “unlawfully discriminated” against him contrary to the Equality Act 2010, to ordain the defenders to provide funding to allow the pursuer to remain at the school, and to grant decree against the defenders for payment to the pursuer of £8,000 for the “anxiety, frustration and upset” caused by the uncertainty regarding his future.

The court was told that the pursuer, who has an autistic spectrum disorder and dyspraxia, had attempted to undertake his secondary school education at a mainstream school under the management of the defenders, namely Waid Academy in Anstruther, but his disability made that “impossible” and in January 2010 he began attending Butterstone School, an independent private school.

After a dispute between the defenders and the pursuer and his family concerning a placing request, including an action in the sheriff court in which the pursuers were successful, the defenders paid for the pursuer’s school fees.

As DM approached his 18th birthday, 6 June 2013, his mother Dr KM and the head teacher of Butterstone considered that he needed a further year at the school to enable him to transition to further education and/or employment.

They both wrote to the council to request that the local authority continue funding the pursuer for the 2013/14 academic year, but the defenders refused, advising that their statutory obligation to provide education came to an end when the child reached the age of 18 - albeit he was able to remain at Butterstone for the final three weeks of term until 28 June 2013 because his fees for 2012/13 had been paid in advance.

The pursuer then raised a summary application against the defenders in Kirkcaldy Sheriff Court, averring that their refusal of 23 May 2013 constituted “unlawful discrimination” against him on the basis of age and disability, contrary to the Equality Act 2010.

Despite the defenders’ refusal, the pursuer was able to continue with his education at Butterstone after his grandfather provided a loan for the school fees for 2013/14.

In the meantime, the summary application proceeded in the sheriff court and following evidence and submissions the sheriff found in favour of the pursuer, granted decree against the defenders for payment of £45,910 for the new school including £2,500 for the pursuer’s “injury and loss”, after ruling that the council discriminated against the pursuer in failing to take account of his disability and on the basis of his age, and failed to make “reasonable adjustments”.

However, the defender appealed to the Court of Session, contending that there had been no unlawful discrimination, as the letter of 23 May 2013 was a simple statement that the defenders had no duty to provide education once the pursuer was aged 18 and a subsequent letter of 3 October 2013 refusing to grant a bursary stated entirely non-discriminatory and justifiable reasons.

It was argued that sheriff failed to make findings that would have entitled him to conclude that the defenders unlawfully discriminated against the pursuer and therefore the appeal should be allowed.

In a written opinion, Lady Paton said: “I consider that the sheriff was entitled to find that there had been indirect discrimination by the defenders’ letter of 23 May 2013 in terms of section 19 of the 2010 Act in respect of the protected characteristic of disability.

“The sheriff was entitled to take the view that the proper interpretation of the letter was that the defenders had made a decision that they would not advise the pursuer and his family of the various options and strategies available and invite further discussion or applications for grants or bursaries, thus failing to alert the pursuer and his family to ways of facilitating the pursuer’s development and learning processes so that he, as a disabled person, could endeavour to achieve the appropriate social, emotional and academic standards which would render his attendance at college – or indeed any other school-leaving goal – more feasible.

“The defenders could reasonably have taken steps to assist the pursuer. The defenders had a duty in terms of section 20 to make ‘reasonable adjustments’ for the pursuer. A ‘reasonable adjustment’ to their provision, criterion, or practice of non‑funding beyond the age of 18 (unless to complete a final year) could have included advising Dr KM of the various options available.

“The breach of sections 19 and 20 could not, in my opinion, be cured by the subsequent treatment in August to October 2013 of the summary application as a request for a bursary in terms of section 49, resulting in a refusal of a bursary on apparently valid and non‑discriminatory grounds. Against that background, I consider that the sheriff was entitled to grant an award representing damages or compensation for the breach of sections 19 and 20 of the 2010 Act.”

The judge added that her initial view was that the sheriff was entitled to make the awards he did, but she was persuaded by the reasoning set out in the opinions of Lord Bracadale and Lord McGhie that it was “not open” to the sheriff to make an award for the school fees payable for the year 2013/14.

Lord McGhie observed that the pursuer’s case was based on the duties imposed on the defenders by section 29 of the 2010 Act, but the sheriff did not expressly find a breach of any specific section.

The sheriff’s substantive ruling was the decision to make an award of £43,410 in respect of the annual school fees based on his view of the provisions of section 20, but the decision proceeded on the basis that making a payment of that amount would have been a “reasonable adjustment” for the purposes of the Act.

He continued: “I would have no difficulty in holding that when dealing with a disabled young person it would have been a reasonable adjustment to their practice to ensure that he was advised of the possibility of applying for a bursary… But advising of the possibility of obtaining a bursary or considering whether to exercise a power to grant a bursary is not the same as making an actual payment.

“I am persuaded that we can properly proceed on the basis that the defenders failed to make any adjustment to their practice of ending funding at 18. I see no reason to challenge the finding that an award of £2500 was appropriate for the uncertainty and anxiety which this must have caused. But I am satisfied that the award of £45,910 cannot be supported…In the result, I would allow the appeal in so far as necessary to quash the first finding of liability in the sum of £45,910 is concerned and substitute a liability in the sum of £2500 with interest.”

Lord Bracadale added: “While I can see that a reasonable adjustment in relation to a class of disabled persons who were approaching the age of 18 and were having difficulty with transition might be to advise the disabled persons in that class of the availability of discretionary bursaries to fund a seventh year, or to treat a request for funding as an application for a discretionary bursary, I do not think that it can be the case that a reasonable adjustment for such a class of disabled persons would be to pay the fees for a further year of school education in every case.

“I am satisfied therefore that in this case there was a breach of the duty to make reasonable adjustments and that the local authority failed to comply with that duty in relation to the pursuer; in the light of that the award in respect of the claim based on compensation for injured feelings should be affirmed. But the breach of duty would not give rise to a requirement to pay the fees for a further year at the new school and I would allow the appeal to the extent of quashing the liability in respect of the payment of fees for an additional year at the new school.”

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