The City of Edinburgh Council v R 2018 CSIH 20

http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csih20.pdf?sfvrsn=4  (Second Division, Inner House, Court of Session, 23 March 2018)

Background: The appeal by the City of Edinburgh Council against the decision of the Additional Support Needs Tribunal for Scotland (ASNT) was refused by the Inner House of the Court of Session Following significant deterioration of the child’s mental health, a diagnosis of autism and mental health issues was made. In 2014, the child’s mother “R” sought assessment for a co-ordinated support plan (CSP) in terms of section 2 of the Education (Additional Support for Learning) (Scotland) Act 2004 due to the disability which greatly limited the child’s ability to benefit from education, unless significant support was provided. 

Proceedings were raised by the mother and supported by the Equality and Human Rights Commission due to the local authority’s failure to provide a CSP.  The ASNT found that the City of Edinburgh Council in respect of the child’s educations had failed to make “reasonable adjustments which resulted in “discrimination on the grounds of disability” under section 15 of the Equality Act 2010. The ASNT held that a CSP should be issued in respect of the child no later than 6 January 2016. 

The local authority issued a CSP however it was deemed inadequate by the ASNT and requested the local authority to make the necessary adjustments later that year. The second plan was held to be inadequate and the subsequent delay subjected the child to discrimination under section 85(2)(a) and to her “detriment” under section 85(2)(f) of the Equality Act 2010 

The City of Edinburgh Council appealed to the Court of Session against the decision of the ASNT, arguing that there was no discrimination under section 15 and there was no breach of duty under section 85.  The Appellant also argued that the ASNT did not support its ruling with necessary evidence or provide adequate reasons for their conclusion. 

Held: The Court of Session refused the appeal on the grounds that the Court did not accept the specialist educational tribunal erred in their decision.  Lord Malcolm stated at paragraph 8: “As a specialist body the tribunal was more than entitled to conclude that the deficiencies in the plan would have these consequences. It was a reasonable conclusion to draw given the failure to provide the responsible persons with an appropriate educational objective or objectives supported by the expression of sensible and practical means to achieve the desired result.”  

The Appellant argued that they had made sufficient changes to the child’s education through the amendments to the CSP and therefore there was no breach of section 85(2)(a).  Reviewing the purpose of the CSP and the ASNT decision Lord Malcolm said at paragraph 10: “Where it is needed, a CSP is an important part of the authority’s educational responsibilities… The CSP should set out the educational objectives for the child and the measures necessary for their fulfilment…We identify no error in the tribunal’s view that the deficiencies in the plan will have impacted adversely on the education provided to the pupil. In any event, we doubt whether the court would have been entitled to substitute any different opinion of its own for that of the specialist body entrusted with making these decisions. We see no need for any findings in fact over and above those made by the tribunal.” 

In the appellant's final argument it was submitted the ASNT erred by finding the child had been treated unfavourably under section 15 of the 2010 Act. The Court refused this argument, stating that the CSP in this case was necessary due to the child’s disability. The delay and inadequate CSP was the cause of the unfavourable treatment.  In conclusion the Court stated at paragraph 17; “Overall it is sufficient that the authority knew of the pupil’s disability, subjected her to unfavourable treatment because of a CSP which was required because of the disability... Our conclusion is that the tribunal did not err in its findings.  The appeal was refused.


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