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URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_20.html
Cite as: 2018 SC 399, 2018 SLT 652, 2018 GWD 11-137, 2018 SCLR 599, [2018] ScotCS CSIH_20, [2018] CSIH 20

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Brodie

Lord Malcolm

OPINION OF THE COURT

[2018] CSIH 20

XA41/17

delivered by Lord Malcolm

in the appeal to the Court of Session under schedule 17, part 3, paragraph 11 of the

Equalities Act 2010

THE CITY OF EDINBURGH COUNCIL

Appellant

against

in respect of a decision of

Respondent

the Additional Support Needs Tribunal for Scotland

dated 7 April 2017

23 March 2018

Appellant: McKinlay; City of Edinburgh Council

Respondent: Stobart; Drummond Miller LLP

[1] This appeal concerns a decision made by the Additional Support Needs Tribunal for

Scotland in response to a claim made by the mother of a teenage child with a severe

disability. Her mental health and behaviour deteriorated significantly in the summer of

2013, and she began to refuse to go to school. She had not attended school regularly since

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December 2013 and not at all since 22 December 2015. Her difficulties arose from a

diagnosis of autism spectrum disorder and mental health issues, which significantly limited

her ability to benefit from, or meaningfully engage with education, unless given significant

support. In April 2014 her mother requested assessment for a co-ordinated support plan

(CSP) in terms of section 2 of the Education (Additional Support for Learning) (Scotland)

Act 2004. Subsequently proceedings were raised in respect of a failure to provide a CSP, and

the tribunal issued a direction requiring that a finalised CSP be issued no later than 6

January 2016. On that date the City of Edinburgh Council, as education authority and

responsible body, issued a finalised CSP. The tribunal found it to be inadequate and the

authority was required to amend it by 11 November of that year.

[2] The present appeal relates to claims that the authority failed to make reasonable

adjustments in respect of the child’s education, all in terms of the Equality Act 2010; such

failures amounting to discrimination on the grounds of disability in terms of the Act. It was

contended that the authority had failed to provide an adequate and effective education.

Evidence was heard from a number of witnesses involved in the child’s education and in

providing support for her, and also from her mother. It was agreed on behalf of the

authority that the revised plan remained inadequate, but this was said to follow inevitably

from the child being out of school for a lengthy period. It appeared to the tribunal that

where a pupil, in consequence of disability, has additional support needs such that she

requires a CSP, then a failure by the authority to provide an adequate plan is unfavourable

treatment in terms of section 15 of the 2010 Act (discrimination arising from disability). The

delay, followed by the inadequacies of both plans, constituted discrimination arising from

the pupil’s disability. The discrimination occurred in the way the authority provided

education for the child (section 85(2)(a)), and it subjected her to a “detriment” in terms of

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section 85(2)(f). The authority knew of the disability and there was no legitimate aim served

by its conduct. The authority was instructed to issue an apology, and other consequential

orders were made for the purpose of remedying the defaults.

[3] The tribunal explained that the plan of November 2016 set a single educational

objective, namely that the child returned to full-time school education. It specified that the

required additional support to achieve this was (a) a consultant psychiatrist specialising in

child and adolescent mental health would provide anti-depressant medication and attend

planning meetings, and (b) a social worker would be the lead professional for the team

around the pupil. Under reference to paragraphs 10-17 of annex 2 to the decision, regard

was had to the requirements of section 9(2) of the 2004 Act and the terms of the relevant

code of practice. It was “clear from the paucity of the educational objective … that the CSP

is not adequate”. The tribunal doubted that the additional support mentioned in the plan

would secure the educational objective. Medical help could not be co-ordinated in terms of

a CSP, and the doctor himself was not confident that the treatment was helping the pupil.

The provision for a social worker to lead the team was not an additional support in terms of

the Act, it being no more than an administrative role.

[4] The tribunal held that the “problem” in the case was not a failure to make reasonable

adjustments, but the absence of an adequate CSP. This resulted in “a lack of strategic

oversight and a failure to co-ordinate measures of support and reasonable adjustments

which would help the child” (paragraph 11(46)). The authority had not explained why the

plan made no mention of the support which had been provided, for example by the supply

of a virtual learning environment for the pupil, and educational support from a visiting

teacher. As to the CSP, the evidence demonstrated that the sole educational objective was

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unachievable. The plan should have identified “stepped objectives” towards a return to

school.

[5] The tribunal’s conclusions were expressed as follows at paragraphs 11(50-52):

“It appeared to the tribunal that the failure to provide an adequate CSP is not simply

a technical or administrative failure, but is a failure that goes to the very heart of the

circumstances of this case. A CSP which set out a series of appropriate and adequate

educational objectives and identified suitable, appropriate and adequate measures of

additional support and the professionals who should provide those additional

measures of support would provide a structure within which the young person’s

planning meetings (YPPM) could operate more effectively. In due course, if

necessary, the minutes of the YPPM meetings could be compared with that adequate,

comprehensive CSP to ascertain what, if any, progress the responsible body was

making towards the suitable adequate education objectives identified in the CSP.

The child is entitled in terms of the 2004 Act to an adequate CSP. The tribunal is

satisfied that, in failing to provide the child with an adequate CSP, the responsible

body has treated the child unfavourably and subjected her to detriment in terms of

section 85(2)(f) of the 2010 Act.

The child is entitled to an adequate CSP in terms of the 2004 Act setting out adequate

educational objectives and additional measures of support and specifying the

professionals to provide those measures. The tribunal is satisfied that, in failing to

provide an adequate CSP – in failing to identify adequate objectives and measures –

the responsible body has failed to provide the strategic oversight and structure for

the YPPM to operate in and that, in doing so, it has treated the child unfavourably

and discriminated against her in the way it provides education for the child. The

nature of the unfavourable treatment in the way that the responsible body provides

education to the child arises from the failure to identify adequate educational

objectives and measures referred to above. The YPPM is chaired by a social worker

who has very limited direct involvement with the child and whose own service –

social work – has very limited involvement with the child. He is not an

educationalist. Accordingly, it can only hamper him in chairing the YPPM that

appropriate step by step educational objectives have not been identified by the

responsible body, nor have adequate additional measures of support been identified

by the responsible body. Effectively, he and the YPPM is being denied a useful over-

arching strategy which would inform the decisions taken at the YPPM about

engagement with, and educational provision for, the child. Accordingly the tribunal

is satisfied that the responsible body has discriminated against the child in terms of

section 85(2)(a) of the 2010 Act.”

[6] The authority has appealed against the decision to this court. The grounds of appeal

can be summarised as follow. The tribunal was in error in concluding that there was

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unfavourable treatment in terms of section 15 of the 2010 Act, and that there was a breach of

duty in terms of section 85(2)(a) and (f). Furthermore the tribunal failed to make the

necessary findings in fact to support its conclusions. It did not provide adequate reasons.

There was no evidence of a lack of co-ordination and strategic oversight, nor of inefficient

YPPMs. The tribunal ignored the evidence of the support provided and the adjustments

made for the pupil.

[7] In submissions, the grounds of appeal were elaborated upon as follows. Under

reference to Trustees of Swansea University Pension and Assurance Scheme and Another v

Williams [2015] ICR 1197, the tribunal failed to identify the hurdle, difficulty, or

disadvantage which the inadequate CSP created for the child as a disabled person. The

tribunal had been unpersuaded by various claims of a failure to provide reasonable

adjustments under section 14 of the 2004 Act. In short, no unfavourable treatment had been

established. Having regard to the above summary of the tribunal’s decision, and having

read it in full, we see no merit in these criticisms. The difficulties caused by the deficient

CSP were clearly articulated.

[8] It was submitted that, in any event, the tribunal failed to make findings in fact such

as would support the view that the inadequacies in the plan resulted in a lack of strategic

oversight and a failure to co-ordinate measures of support and reasonable adjustments

which would assist the child. Reference was made to the fact that evidence was led from

people who had attended the YPPMs. We do not accept this submission. 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.

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[9] It was submitted that the identified deficiencies in the plan and their consequences

did not amount to a failure to provide education for the pupil in terms of section 85(2)(a).

The tribunal had not upheld the claim that its duties under section 14 of the 2004 Act had

been contravened (paragraph 11(35)). Education had been provided in various ways, for

example, through the virtual learning environment and from a visiting teacher. The CSP is a

strategic planning document, not a way of providing education. There were no findings in

fact such as would support a breach of this provision.

[10] We are satisfied that this submission takes too narrow a view as to the scope of the

duty not to discriminate “in the way (the authority) provides education for a pupil.” Where

it is needed, a CSP is an important part of the authority’s educational responsibilities.

Reference can be made to paragraph 11(50) of the decision (quoted earlier). The CSP should

set out the educational objectives for the child and the measures necessary for their

fulfilment. Reference can be made to section 9(3) of the 2004 Act. 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.

[11] With regard to the requirement in section 85(2)(f) not to discriminate “by subjecting

the pupil to any other detriment”, it was submitted that again there are no relevant findings

in fact as to support the finding of a breach of this provision. No disadvantage to the pupil

is identified.

[12] We accept that it is not clear that the finding of a breach of this provision added

anything of materiality to the tribunal’s decision. The tribunal did not specify any

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additional detriment over and above that discussed in terms of subsection (2)(a). However,

any flaw in this regard is of no real importance to the decision overall. In other words, if this

finding is an error, or subject to challenge, it is not material to the ultimate order.

[13] The final submission for the authority merits greater consideration. It was contended

that there had been no identification of the basis for the conclusion that, in terms of

section 15(1)(a) of the 2010 Act, the authority had treated the pupil unfavourably “because of

something arising in consequence of (the pupil’s) disability.” At the appeal hearing it

appeared that both counsel considered that this provision meant that the delay/inadequacies

in respect of the CSP required to be caused or contributed to by the pupil’s disability, as

opposed to, for example, by a lack of adequate resources, systemic failures, or sheer

carelessness on the part of the authority. It was submitted that the tribunal did not address

the cause of the unfavourable treatment. (Counsel for the mother submitted that the onus

was on the authority, and it had not presented any non-discriminatory cause for the

unfavourable treatment.)

[14] In our view the suggested approach involves an erroneous construction of the

wording in section 15(1)(a), which states:

“(1) A person (A) discriminates against a disabled person (B) if –

(a) A treats B unfavourably because of something arising in consequence

of B’s disability,”

The building blocks are:

(a) the authority treating the pupil unfavourably (this is satisfied); and

(b) the cause of this being something arising in consequence of the pupil’s

disability.

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No doubt the wording in the second part was carefully chosen. If the intention was that the

disability must be a cause of the treatment being unfavourable, this was a curious way of

expressing it. In the present case the “something” was the delayed and then inadequate

CSP. While as a generality a CSP can be required in respect of a pupil without a disability,

in the context of this claim, if the pupil had not been disabled there is no reason to suppose

that there would have been a CSP. It was the disability which resulted in the need for the

CSP, and it was the CSP which was the unfavourable treatment.

[15] Blackstone’s Guide to the Equality Act, third edition, states (paragraph 3.23) that the

legislation is aimed at cases “where the reason for the (unfavourable) treatment is not the

disability itself, but something which arises in consequence of the disabled person’s

disability.” This contradicts the proposition that the cause of the treatment being

unfavourable has to be the disability. A more remote connection is sufficient. Blackstone’s

Guide continues to the effect that any detriment can amount to unfavourable treatment,

irrespective of how others are treated. There is no need for a comparison with the treatment

of non-disabled people. Treatment common to the disabled and non-disabled can, in the

case of the former, amount to discrimination if, in the circumstances of the case, the

treatment arises in consequence of the disability. So if, but for the disability, the disabled

pupil would not have been subject to the unfavourable treatment, then, on the face of it, the

statutory test is met.

[16] Echoing another passage in Blackstone’s Guide, the tribunal observes that “it is the

thing which arises in consequence of the disability which must have caused the treatment.”

Examples are figured such as absences from work, and behavioural or capability issues.

Thus, even if a disabled person is being treated in the same way as non-disabled people, for

example by being disciplined as a result of absences or careless work, discrimination can

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occur in terms of section 15(1)(a). If a CSP had been required of the authority in respect of a

non-disabled pupil, then the fact, if it be the fact, that whatever caused the deficiencies in the

present case would have operated to the same disadvantageous effect on that person’s

education, this will not allow the authority a defence to this disabled pupil’s discrimination

claim.

[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,

and, in terms of subsection 1(1)(b), cannot show that the treatment was “a proportionate

means of achieving a legitimate aim” (there was no suggestion of a legitimate aim). Our

conclusion is that the tribunal did not err in its findings in paragraphs 11(41/2):

“It appeared to the tribunal that where a pupil, in consequence of disability, has

additional support needs such that the pupil requires a CSP in terms of section 2 of

the 2004 Act then the failure by a responsible body to provide a CSP or the provision

of a CSP which is not adequate, is unfavourable treatment in terms of section 15

(discrimination arising from disability) of the 2010 Act… and adversely affects how

the responsible body provides education for the child in terms of section 85(2)(a) of

the 2010 Act.”

[18] We have reached the above view on the basis of an interpretation of the statutory

wording. We are reassured to note that our decision is consistent with the careful analysis

provided by Laing J sitting in the Employment Appeal Tribunal in Hall v Chief Constable of

West Yorkshire Police [2015] IRLR 893, and that of Simler J, also sitting in the Employment

Appeal Tribunal, in Pnaiser v NHS England [2016] IRLR 170. We respectfully endorse the

observations of both learned judges as to the background to and proper construction of

section 15 of the 2010 Act. We also note that those decisions, and our analysis, sit

comfortably with the discussion of section 15 in Aster Communications Ltd v Akerman-

Livingstone [2015] AC 1399; Baroness Hale of Richmond at paragraphs 18 and 19, and

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Lord Wilson at paragraph 67. Reference can also be made to the comments of Elias LJ in

Griffiths v Work and Pensions Secretary [2017] ICR 160 at paragraphs 25 and 47-58.

[19] For the above reasons the appeal will be refused.