Scottish Sheriff Court Decisions

 

 

B152/04

JUDGEMENT OF SHERIFF WILLIAM SEITH STANNERS IRELAND   in the cause   PARENT A as parent and legal representative of the Child (Assisted Person) Pursuer;   against   EAST AYRSHIRE COUNCIL   Defender: ­­­­­­­­­­­­­­­­­________________

 

Act: Mr Nisbet

Alt: Ms Williamson, Counsel

 

 

 

KILMARNOCK: 21 September 2006.

 

 

The Sheriff, having resumed consideration of the cause, Finds the following facts admitted or proved:-

 

(1)          The Pursuer is the father of the child.

 

(2)          The Defenders are an education authority. They are responsible for the management of School A.

 

(3)          The child was born on 9 February 1996. At the time of the decision complained of on 1 March 2004, he was aged 8 years. The child does not have difficulties with his manual dexterity, physical co-ordination, continence, ability to lift, carry or otherwise move everyday objects, speech hearing or eyesight. Although he is above average in terms of both general intelligence and educational attainments, he has difficulties in learning and understanding social and behavioural matters. He has difficulties with his mobility, which requires to be seen in terms of his subsequent diagnosis of suffering from Asperger's Syndrome.

 

(4)          The child has considerable difficulties with social interaction but these difficulties are not consistent. There are occasions when he is able to interact appropriately and times when he cannot. This is common in children who suffer from Asperger's Syndrome.

 

(5)          Changes in his routine can present the child with difficulties. However again, these difficulties are not consistent. There are occasions when the child can cope with changes and times when he cannot. His behaviour can be volatile and at time extremely violent

 

(6)          At the age of approximately 51/2 years, the child was diagnosed with attention deficit hyperactivity disorder (ADHD) and oppositional defiance disorder (ODD).

 

(7)          Adhd is one of the most common psychological disorders of childhood. It is characterised by behaviours of over-activity, impulsivity and inattention. Associated features include non-compliance, poor social relationships and poor self-esteem.

 

(8)          ODD defines a group of behaviours in young children by the presence of markedly defiant, disobedient and provocative behaviour. Such behaviour may include temper tantrums, arguing with adults, defying rules, anger and resentment.

 

(9)          Both ADHD and ODD are recognised in the World Health Organisation's Classification of Mental and Behavioural Disorders ICD-10.

 

(10)      The child was prescribed methylphenidate commonly known as Ritalin to help manage his ADHD. Methylphenidate is a mild central nervous system stimulant, widely used in children who have ADHD. The child was prescribed 30mg of methylphenidate per day. He is required to take 15mg in the morning, 10mg at lunchtime and 5mg in the afternoon.

 

(11)      While the administration of methylphenidate appears to make a contribution to the amelioration of certain aspects of the child's behaviour, there is no identifiable pattern in that sometimes the child has very violent outbursts at times when methylphenidate should have had its full effects.

 

(12)      In early 2004, the child was referred to the Scottish Centre for Autism at Yorkhill Hospital for further diagnostic review and investigation into whether he has an autistic spectrum disorder.

 

(13)      Asperger's Syndrome is a higher functioning form of autism. It usually occurs in children of average or above average intelligence. Children suffering from this disorder have significant impairment of their social interaction and communication.

 

(14)      It is regarded as good practice within the medical profession for a diagnosis of an autistic spectrum disorder to take place only after a full differential diagnostic work-up. This is a process that would usually take place over the period of an entire day and would be multi-disciplinary.

 

(15)      It would be premature for any professional - outwith the diagnostic exercise of a full diagnostic work-up in a multi-disciplinary team tasked with considering all possibilities on the day and reviewing all the evidence - to identify any child as having an autistic spectrum disorder. However, professional experts are able to determine prior to that whether a child is screen positive for Asperger's Syndrome. Asperger's is a condition which someone is born with and is a life-long condition.

 

(16)      Following a full diagnostic work-up, on 14 March 2005, the child was diagnosed with Asperger's Syndrome by the Scottish Centre for Autism at Yorkhill Hospital. At the time of the decision to exclude the child on 1 March 2004 the Defenders did not know that the child had Asperger's Syndrome. However, the decision maker, the Head Teacher, had sufficient knowledge that the child was disabled.

 

(17)      People with Asperger's Syndrome may not show difficult, bad or violent behaviour, but quite a number of them do and often that behaviour will be a result of their underlying condition affecting their ability to interpret and respond appropriately to social situations. However, violence is not integral to Asperger's syndrome. It would therefore be unreasonable to attribute all difficult or violent behaviour to Asperger's Syndrome itself.

 

(18)      A child's violent behaviour, whether in general or on any specific occasion, cannot properly be understood in simplistic or uni-dimensional terms of resulting from a particular physical or mental condition. It is a more complex issue involving a balance of several different components. However the child's behaviour on 1 March 2004 was related to his difficulty to learn and understand in social situations and was related to his disability.

 

(19)      Youth Strategy operates from three bases within the Defenders' Education Authority area. Youth Strategy also provides outreach support to other primary and secondary schools managed by the Defenders.

 

(20)      The child was moved to the Youth Strategy base at School A initially with a view to re-integrating him back into Gargieston Primary School.

 

(21)      The staff within Youth Strategy worked to develop the child's social skills to enable him to manage his behaviour and to get on with his peers. Initially the child spent full days in Youth Strategy receiving a very intense form of tuition. This involved working with one or two adults in a small group.

 

(22)      The child could not cope with this intensive form of tuition over the course of a full day. He would have outbursts and present some very challenging behaviour. Following a reduction in the amount of time he spent in Youth Strategy, his behaviour improved.

 

(23)      During the course of 2003, the child's parents made a successful placing request to School A.

 

(24)      School A is a mainstream school. However, there are children who attend that school who have physical disabilities as well as learning difficulties.

 

(25)      All the staff at School A have a great deal of experience in dealing with children with physical as well as behavioural difficulties. In particular, the staff has a great deal of experience in dealing with situations where children can be aggressive or confrontational.

 

(26)      The Defenders operate a system of staged intervention in relation to behavioural difficulties, which is designed to keep solutions to the problems within the school or community as far as possible.

 

(27)      In the first instance, the Defenders operate a School Assessment Team (SAT) which involves the family and staff and perhaps an educational psychologist having a meeting to discuss a problem and its solutions.

 

(28)      The Community Assessment Team (CAT) is a higher level than a SAT and usually involves more senior officers in the Council becoming involved. It's usually attended by a wide range of professionals which may include social work personnel, health service personnel as well as the parents.

 

(29)      CAT has been replaced by the Partnership Assessment Team (PAT). The aim of a PAT is to better integrate services at a local level. It again involves a multi-disciplinary team.

 

(30)      School A have a School Discipline and Anti-Bully Policy. The ultimate responsibility for order and discipline in the school lies with the Head Teacher. She is also responsible for ensuring the policy is implemented.

 

(31)      In considering what action to take in relation to a disciplinary matter, the Head Teacher takes into account the needs of that particular child and any learning or behavioural difficulties they may have.

 

(32)      At the time of his enrolment in School A in June 2003, the child's parents arranged with the headmistress at School A, for the child to have 10mg of methylphenidate at 1.10 pm. However, the child's parents subsequently arranged for the child's medication to be administered at the Youth Strategy base at lunchtime.

 

(33)      The Defenders were never advised that the child ought to be administered methylphenidate before food. Neither were they advised to administer this medication at 12.30 pm.

 

(34)      In August 2003, the child began to attend mainstream classes at School A.

 

(35)      The Head Teacher was familiar with the child's behavioural difficulties and made a point of seeing him every day. She would see him coming in from break times in the corridor and ask him how his day was. She also entered his classroom a great deal observing and working alongside the children. She also attended regular review meetings in relation to the child. When she could not attend, she was provided with the minutes of that meeting. The Head Teacher would reasonably know on the basis of those factors that the child was disabled.

 

(36)      The child continued to receive additional support from Youth Strategy while he attended mainstream classes at School A. This support was in the form of a teacher and a Special Educational Needs Auxiliary (SEN) who were present in the child's classes.

 

(37)      The purpose of providing two adults to attend the child in his classes, was to support his behaviour and to reassure him when he felt insecure or vulnerable.

 

(38)      Monthly review meetings were held in relation to the child. These meetings were attended by a multi-disciplinary team usually comprising the headmistress or her deputy, one or more members of staff from Youth Strategy, a SEN auxiliary, one or both of the child's parents, an educational psychologist, a parent support worker, and a representative from the Child and Adolescent Mental Health Service (CAMHS).

 

(39)      The monthly meetings enabled the Defenders to monitor the child's progress over a period of time and to identify areas of difficulties which may require further intervention and additional support. Youth Strategy also devised an individual educational programme (IEP) for the child which set long and short term targets. The IEP includes targets in relation to behavioural issues which were regularly reviewed.

 

(40)      A report for the monthly review meetings was compiled by Youth Strategy detailing the child's progress and highlighting areas of particular concern. The report would be circulated to those attending the review meeting for discussion.

 

(41)      A minute of the monthly review meetings was produced which noted the areas of discussions and the recommendations made.

 

(42)      During September and October 2003, the child experienced difficulties in the playground. These were highlighted in the Reports to and Minutes of Review Meetings for those months. He had problems interacting with a large group of children. However, these difficulties were not confined to the playground but were also experienced within the classroom.

 

(43)      A member of Youth Strategy was always present while the child was in the playground. Youth Strategy devised strategies to deal with the difficulties the child was experiencing in the playground in order to help him develop his social skills.

 

(44)      The child was following the review meeting of 28 November 2003, given the option of using a computer instead of going into the playground, at break time and lunchtime. The Defenders did not consider it appropriate to exclude him from the playground environment entirely as he would not have had the opportunity to put the social skills which he needed to learn and develop into practice. The decision whether to allow this child to play with other children and, in particular, in competitive games is an exercise of judgement which the staff require to take having considered the child's background, his demeanour on that particular day and the structures in place within the playground to support his activities. The staff are entitled, given their experience with this child, to exercise that discretion.

 

(45)      The Defenders have at all times integrated the child into the playground with a degree of caution and always following an assessment of the situation. To have refused to allow him into the playground would not have been productive to his social development.

 

(46)      The Report to and Minutes of the Review Meeting of 28 November 2003 again highlight the playground as an area of difficulty for the child. The Minutes also contain a recommendation that playground routines should "be structured and not to include competitive games where possible".

 

(47)      This was not considered by the Defenders to be a ban on the child ever being allowed to play a game such as football. The recommendation served to highlight the difficulties the child had with dealing with the particular challenges involved in a competitive game such as football and to ensure that such games were always supported by an adult.

 

(48)      Prior to 1 March 2004, the child's behaviour was such that he had been excluded on three prior occasions for violent behaviour.

 

(49)      On 6 January the child was excluded from School A for 3 days following an incident of violence where he was both verbally and physically abusive.

 

(50)      On 21 January 2004, the child was excluded from School A for 7 days following an incident of violence in the classroom and corridor in which he kicked and spat at a member of staff.

 

(51)      On 10 February 2004, the child was excluded from School A for 3 days after he threw a bottle at a member of staff in the playground.

 

(52)      On 1 March 2004, the child's normal Youth Strategy Support Worker was absent. On this day the child was allocated a classroom assistant. This lady was well known to the child.

 

(53)      The classroom assistant had sufficient experience to be able to cope with any challenging behaviour that might be exhibited by the child.

 

(54)      In the absence of the child's normal Youth Strategy Support Worker, the Head Teacher undertook to administer the child's methylphenidate during the lunch breach which she intended to administer to him at the end of the lunchtime recess.

 

(55)      Prior to lunchtime on 1 March, the child was found lying on the grass crying and upset. He was approached by two members of staff to find out what was wrong. He told them another child had taken the ball away which he was supposed to take into the dinner hall. One of the staff said she would speak to the other child, but that the child should come in for his lunch. The child calmed down and followed them into the dinner hall. On the way they passed the other child who apologies. The child then ate his lunch.

 

(56)      The Head Teacher made the decision on 1 March to allow the child to go back out into the playground after his lunch. In her judgement, after speaking to the child first about how he was feeling, she was satisfied that the child was calm and no longer upset about the earlier incident.

 

(57)      In any event, the child indicated that he wanted to go out to play. If the Head Teacher had refused to allow the child back into the playground she felt, reasonably, that any refusal would be seen by the child as a punishment. Based on her experience of the child and his behaviour that day and his improved demeanour, she decided it was appropriate to allow him to play football.

(58)      The child began to play football with some of the other children. He was the goal keeper. He complained to the staff member who was supervising the game that the ball was being kicked too hard. The staff member explained that this sometimes happened but he was alright. She also asked the other boys not to kick the ball so hard.

 

(59)      As the game progressed, the ball was kicked up the playground. The child and another boy gave chase. The other boy overtook the child and got to the ball first. He then kicked it back down the playground. The child punched the other boy.

 

(60)      The staff member, who had supervised the game, ran towards the child and explained that hitting was unacceptable and that he would have to go in if it happened again. The child took off his jacket and swung it around, hitting the staff member in the face. She told him to not to do that and put her hand up to take the jacket away as the child tried to do it again. The child spat in her face.

 

(61)      The staff member started to walk away from him and began radioing for assistance. She heard the child mumbling and turned to face him. She thought he may turn his fury against the other children and therefore attempted to take his jacket away.

 

(62)      The child grabbed her by her coat collar or scarf. She felt his hands on her throat. He spat in her face. The child grabbed the hood of her jacket and pulled it to the front of her throat. The staff member found it hard to breath. She was eventually freed by 3 other staff, Mrs W, Mrs McC, Mrs McL.

 

(63)      The child tried to spit on Mrs McC. He threw one shoe at Mrs McL and another at Mrs W and the Head Teacher who had arrived on the scene.

 

(64)      As the staff attempted to move the other children inside to leave the child to calm down, he punched Mrs W on the arm. Mrs McL approached the child from behind to restrain him. The child kicked the Head Teacher. The child was carried inside the school by Mrs W, Mrs McL and the Head Teacher. While he was being carried, he bit Mrs McL and spat on the Head Teacher a number of times.

 

(65)      Once inside the building the child was released. He went into the lunch area and picked up a brush shaft and swing pole to threaten staff. The staff closed the door for their own safety. The child began battering things against the door. He upturned chairs and bins. He then urinated against the door.

 

(66)      In terms of paragraph 5.5 of Standard Circular 8, "Where there is an incident of physical violence against a member of staff, there should be an immediate exclusion which will normally not be less than 10 days ....".

 

(67)      The Head Teacher decided that although the child had ADHD and ODD and considerable behavioural problems, the level of aggression and violence against staff in this incident warranted exclusion in terms of Standard Circular 8. The child was completely out of control and not responding to any member of staff. She was concerned about the safety of her staff and other pupils. She was justified in that view.

 

(68)      The Head Teacher considered that if another pupil who did not have any behavioural difficulties such as the child had caused the incident on 1 March, and exhibited the same level of aggression and violence as the child had, she would still have taken the decision to exclude. She was also justified in reaching that conclusion.

 

(69)      The Head Teacher contacted the Head of Schools, Graham Short, for advice on the exclusion and its length. This was because any further exclusion she would impose would exceed the cumulative total of 30 in terms of paragraph 5.3 of Standard Circular 8. Accordingly, she was required to refer the matter to the Head of Schools.

 

(70)      In any event, the Head Teacher considered it good practice to seek advice on any decision to exclude a child with behavioural difficulties. Mr Short, the Head of Schools, confirmed that 20 days was an appropriate length of time to exclude the child in all the circumstances.

 

(71)      On 23 March 2004, a PAT meeting was held in which both the child's parents were present. It was agreed at that meeting that the child would remain for the present time in Youth Strategy until the outcome of his diagnostic review by the Scottish Centre for Autism at Yorkhill Hospital.

 

(72)      The outcome of the diagnostic review would have considerable importance in guiding the Defenders' as to the type of educational placement that would be appropriate for the child.

 

(73)      The regular views conducted by the Defender's of Scott, together with the system in place of SAT, CAT and PAT meetings, ensures that the Defenders had considerable scope to monitor the child's needs in detail, involving a number of difference professionals.

 

(74)      A formal risk assessment for the child is unnecessary as there is in place a more sophisticated process to monitor any risk which might be occasioned to the child on account of his disability.

 

(75)      The responsibility for the production of a health care plan is the responsibility of the Health Service under the Scottish Executive Guidance "The Administration of Medicines in Schools". The Health Service had not contacted the Defenders with a view to opening a health care plan.

 

Findings-in-Fact and in-Law

 

(1)          The child does have a disability under Section 1 of the Disability Discrimination Act 1995 in relation to his diagnosis of Asperger's Syndrome. This disability is based upon an impairment in his ability to concentrate, learn or understand.

 

(2)          That the child's behaviour on 1 March 2004 was related to his disability.

 

(3)          That his behaviour was the reason for his exclusion from school on 1 March 2004.

 

(4)          The Defenders, by excluding the child on 1 March 2004, prima faciae did treat him less favourably than other pupils to whom the reason for the exclusion does not apply contrary to Section 28B(1).

 

(5)          However, the decision to exclude was justified for a reason that was both material and substantial in terms of Section 28B(7).

 

(6)          At the time of the decision complained of, the Defenders did not know but could have reasonably been expected to know that the child did have a disability.

 

(7)          That the child was not however placed at a substantial disadvantage contrary to Section 28C.

 

(8)          That in any event, any failure to comply with Section 28C would have been justified for a reason that was both material and substantial in terms of Section 28B(7).

 

(9)          That in all the circumstances, the Defenders have not unlawfully discriminated against the child in excluding him from School A contrary to Section 28A of the Disability Discrimination Act 1995.

 

The Court accordingly therefor Repels the Pursuer's first, second, third and fourth pleas-in-law; Sustains the Defenders' first, second, third and fifth pleas-in-law; Repels the Pursuer's fourth plea-in-law; Reserves the question of the expenses of the cause and Appoints parties to be heard thereon on the 20 October 2006 at 12 noon. Reserving to pronounce further.

 

 

 

 

 

Note

 

Introduction

 

This is an action by a father on behalf of his son, as the child's parent and legal representative, against East Ayrshire Council. The subject matter of the cause relates to the Pursuer's contention that the Defenders unlawfully discriminated against him in terms of Section 28A and Section 28B of the Disability Discrimination Act 1995 (hereinafter the DDA) and that in failing to take reasonable steps in accordance with their duties under Section 28C, they have further unlawfully discriminated against him in terms of Section 28B(2). The Pursuer seeks various declarators, reduction and orders for specific implement.

 

In order to protect the identity of the child and his father, parties were agreed that it would be best if the Court were to anonymise the child, his father and any of the Defenders' witnesses who might otherwise, by their identity being made plain, assist in identification of the child. I have agreed to do so as is commonly the case in cases of sensitivity involving children.

 

The Pursuer was represented by Mr Nisbet, solicitor and the Defenders by Ms Williamson, Counsel. Both advised me that this was the first case involving the educational provisions of the DDA in Scotland. The forum for such actions is the Sheriff Court in Scotland, in terms of Section 28N of the DDA, which was inserted by the Special Educational Needs and Disability Act 2001. The equivalent tribunal for England and Wales is the Special Educational Needs and Disability Tribunal (hereinafter where referred to as "SENDIST").

 

I heard evidence over seven days and heard legal submissions over three days. Unfortunately as is often the case, due to the pressures on the Court as regards the number of cases in both criminal and civil proceedings, which it requires to hear, and the availability of the solicitor and Counsel, this case extended over a period of in excess of thirteen months. The issues raised in this case have been complex and difficult and it was necessary for the convenience of the Court, and to assist the parties, that I caused the notes of the evidence to be extended. I would, of course, have preferred to have issued my decision sooner than has been possible but the complexity of the issues raised and the need to consider the specifics of the evidence from the witnesses in this cause, taken together with the other pressures upon this Court in issuing judgements in criminal appeals and family law cases, has meant that the issue of this judgement is later than I would otherwise have hoped, as indeed I am sure parties had hoped.

 

I have not sought to simply repeat the submissions of the solicitor for the Pursuer and Counsel for the Defenders, both of whom helpfully provided written submissions which they amplified orally, but have decided, I trust so that the judgement may be read not only them but by others who have an interest, more readily, by identifying what I have found to be the principal issues in dispute and summarising the solicitor's and Counsel's submissions on that point under each head. In saying that I should express my gratitude to both Mr Nisbet and Ms Williamson for the care which they took in outlining the legislation and previously decided cases.

 

The legislation can not be said to be easy to either read or interpret or apply which is especially true as regards the statutory defences raised by the Defenders which go to "lack of knowledge" and "justification" which I deal with later in the note.

 

I now turn to the first issue, what might be termed the first order question.

 

"The first question: Whether child (A) has a disability for the purposes of Section 1 of the DDA."

 

This is the first order question. Both parties were agreed that the time at which the determination has to be made by the Court as to whether the child was disabled was at the date of the alleged discriminatory event, namely the exclusion of the child from school on 1 March 2004 (Cruickshank v VAW Motorcast Limited [2002] IRLR page 24, page 27 at paragraph 25). Parties were agreed, too, that the onus to show discrimination rests on the Pursuer (Morgan v Staffordshire University [2002] IRLR 190).

 

The DDA by Section 1(1) states:-

"Subject to the provisions of Schedule I, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities."

 

Schedule I paragraph 4(1) provides:-

"An impairment is to be taken to affect the ability of the person concerned to carry out normal day to day activities only if it affects one of the following -

(a)          mobility;

(b)          manual dexterity;

(c)          physical co-ordination;

(d)          continence;

(e)          ability to lift, carry or otherwise move everyday objects;

(f)            speech, hearing or eyesight;

(g)          memory or ability to concentrate, learn or understand; or

(h)          perception of the risk of physical danger."

 

Paragraph 2(1) of Schedule I of the DDA provides:-

"The effect of an impairment is a long term effect if -

(a)          it has lasted at least twelve months;

(b)          the period for which it lasts is likely to be twelve months; or

(c)          it is likely to last for the rest of the life of the person affected."

 

The term "mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is clinically well recognised illness (Schedule I Paragraph 1(1)).

 

There is available to the Court statutory guidance. This is entitled "Guidance on Matters to be taken into Account in Determining Questions relating to the definition of Disability" which was issued by the Secretary of State under Section 3 of the 1995 Act (hereinafter called the General Guidance). Section 3(3) requires that a Court, which is determining for any purpose of the Act whether a person's impairment has a substantial and long term adverse effect on his or her ability to carry out normal day to day activities, must take into account any of the guidance which appears to it to be relevant.

 

Parties were agreed, and my own researches confirm this, that the leading case to assist the Court in its approach to the question of disability is the case of Goodwin v The Patent Office [1999] IRLR page 4 (a decision of the Employment Appeal Tribunal in England). The questions to be answered by any Court considering disability are set out therein (page 6 at paragraph 26) and are - does the person have a mental or physical impairment; does the impairment affect his ability to carry out normal day to day activities in respect of paragraph 4 of Schedule I; is the adverse effect substantial; is the adverse condition long term.

 

After the diagnosis that child A was suffering from Asperger's Syndrome on 14 March 2005 by the Scottish Centre of Autism at Yorkhill Hospital Glasgow, the Defenders conceded that the child does have a mental impairment by reason of having that syndrome. They conceded that this does have an effect on his ability to carry out normal day to day activities as regards paragraph 4(1)(g) of Schedule I, namely his ability to learn and understand. Further they accepted that Aspergers Syndrome has a substantial effect in that regard and that the condition is long term. Consequently the Defenders accept that the child does have a disability within the meaning of Section 1 of the DDA.

 

It is important to pause and note that there had been six days of evidence (4 October 2004, 5 October 2004, 17 November 2004, 18 November 2004, 25 January 2005 and 26 January 2005) before this concession could appropriately be made by the Defenders. I heard further evidence on Thursday 26 May 2005 on issues which arose after this diagnosis was made from the head teacher of the school which child A attended and from the Defenders' expert Dr Thomas McKay who had given evidence on day three of the original days of proof. However, the substantial body of evidence which I heard prior to that diagnosis has a bearing on the next question.

 

Whether the child's other conditions indicate that he was disabled as of 1 March 2004?

 

 

In this section I deal with the Pursuer's argument that the child suffered from other impairments that impacted upon his ability to carry out normal day to day activities as defined in the DDA.

 

I turn first to the undisputed diagnosis made of the child when he was approximately 51/2 years old that he suffered from Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiance Disorder (ODD). Also undisputed by the Defenders is that ADHD and ODD are recognised as mental impairments in the World Health Organisation Classification of Diseases. The Defenders concede that because the child had these conditions he was suffering from a mental impairment as of 1 March 2004.

 

The important point, however, is whether these diagnosed conditions, taken together with other related aspects of the child's behaviour lead to a conclusion that he was otherwise disabled. This involves a consideration of whether these matters, in the round, can be said to have had a substantial and long term effect on his normal day to day activities.

 

Mr Nisbet for the Pursuer submitted they had. He reminded the Court that paragraph 2(1) of Schedule I provides that an impairment is long term if it has lasted at least twelve months or is likely to last for the rest of the life of the person affected.

 

He submitted that there is no dispute by the Defenders that ADHD is a life long condition, being something which the person is born with. He further submitted that the child had impairments in terms of paragraph 4(1) of the Schedule in relation to (a) mobility and (h) perception of the risk of physical danger.

 

He founded on the evidence, from the child's father and from Dr Munna Roy, a medically qualified doctor with a particular expertise in disability medicine, that as the child was in receipt of Disability Living Allowance (DLA) and further Dr Roy's evidence that the level of disability required for an award of DLA is substantial when rating a subject for the existence of disability that the child's mobility was substantially affected and for the long term. He submitted that the Court should have regard to paragraph C.14 of the Guidance that account should be taken of the extent to which a person is inhibited in getting around unaided which itself should be viewed in a wide sense.

 

As regards perception of the risk of physical danger, the Pursuer was inviting the Court to have regard to paragraph C.21 of the Guidance which inter alia provides that account may be taken of reckless behaviour which puts the person or others at risk.

 

Mr Nisbet submitted that the evidence of Dr Taylor, the Pursuer's expert witness, who is a consultant child psychiatrist who specialises in Autistic Spectrum Disorders and is on the National Autistic Society list of recognised specialists in that area, together with Dr Roy's evidence pointed to a substantial adverse effect in terms of the child's perception of the risk of physical danger. In particular, this could be found in the child's lack of road safety sense.

 

There was the further evidence from Dr Taylor, it was submitted, that there was a substantial adverse effect in terms of the child's perception of "stranger danger" and indeed his lack of perception of the physical danger his behaviour would pose to other people. Some support for this was found not only from Dr Taylor but from the Defenders' expert Dr McKay, a distinguished clinical psychologist and from Ms Caroline Martin, a psychologist employed by the Defenders who knew the child.

 

Mr Nisbet submitted that the Court required to have regard to A.10 of the Guidance which involves a consideration of the environment in which the child was to be viewed. He founded on his recollection of the evidence that when the child's activities at school or home were unstructured, he had particular difficulties. Further, the Court should look at the cumulative effects of impairment. An impairment may have an adverse effect on more than one day to day activity whereby the cumulative effect may have a substantial adverse effect even though the effect on an individual activity may not in itself be substantial. The Court required to take an overall view (A.4 of the Code).

 

The Court, too, could look to the evidence of Caroline Martin that the child was one for whom there was a statutory Record of Needs which placed him in the two per cent of pupils with the most severe and complex needs. Further, Dr Roy's overall evaluation pointed to an assessment of the child's overall level of impairment.

 

The Court required to discount the effect of the child's prescribed medicine, methylphenidate, commonly known as "Ritalin" which was prescribed to help manage the child's ADHD. The effect of medication is excluded by paragraph 6(1) of Schedule I. When considering the question of impairment the medicine undoubtedly has a positive effect on the child's concentration and behaviour (I took Mr Nisbet to mean as regards the child's mobility and sense of danger). However that positive effect, in terms of paragraph 6(1) falls to be disregarded when assessing the question of the child's impairment and disability.

 

The Court was to recall the decision of the high court in England, M v S W School and SENDIST [2004] EWHC 2586 (Admin). The Court required to look to not what the person can do but what they cannot do. The question for the Court was whether the child's impairments affected in a more than minor or trivial way his ability to carry out normal day to day activities.

 

The Defenders' submissions were succinctly put by Counsel. Whilst accepting that the Asperger's Syndrome was likely to lead to a definition of disability in terms of Schedule I, ADHD and ODD were not. She invited me to prefer the evidence of Dr McKay, the Defenders' expert witness, who is a chartered educational psychologist and clinical director of the National Diagnostic and Assessment Service for Autism, amongst other distinctions, to that of Dr Taylor and Dr Roy because of Dr McKay's particular renown and expertise in child psychology and with dealing with young persons and their development. Approaching Dr McKay's expertise in this way would lead to the view that his evidence should be preferred to that of Dr Taylor and Dr Roy. In particular as regards the claimed impairment going to the child's lack of perception of physical danger, Dr McKay's evidence was that the child's perception falls within the parameters of what an eight year old child was likely to have, for example, in terms of road sense.

 

She further submitted that the child's ability to cope with changes in his routine - his environment - was not an indicator of disability for there were occasions when the child could cope with the changes as well as times he could not. The child's behaviour was described by witnesses, especially Caroline Martin and Maggie Fallon, the Defenders' manager of Youth Strategy.

 

The Defenders submitted, too, that the award of a lower rate of mobility component of the child's disability living allowance was not significant in assessing an affect on his day to day activities. The test for the award of disability living allowance she submitted was not the same as the test for disability in terms of the DDA. Nor must it necessarily follow that the child who has a Record of Needs falls within the definition of disability. The statutory scheme for a Record of Needs, arising from an Education Act, was entirely different from the test the Court has to consider in terms of the DDA. For example a child may have dyslexia and thus have a Record of Needs yet still may not be impaired in a substantial and long term manner in terms of carrying out his normal day to day activities.

 

Reasoning

 

I accept the persuasive authority of the English Court's decision in M v S W School (Supra) namely that the correct approach in terms of construing the DDA is to look to what the person cannot do rather than what they can do. It also seems to me to be appropriate and relevant to have regard to A.4 of the Code namely that the Court should have regard to the cumulative effect of any one impairment with others because together, although not singularly, there may be a substantial long term adverse effect. These approaches require, of course, to be applied to the actual evidence in the case. I have carefully reviewed all of the witnesses evidence to whom both Mr Nisbet and Counsel have referred and I have looked at the reports lodged as productions to which the witnesses have spoken in their evidence.

 

Importantly the DDA is in my view involved with a test of functionality not the ascription of labels or even a diagnosis. It would be wrong to move from an ascription of ADHD or ODD to a finding that a person is necessarily disabled for the purposes of the DDA.

 

As regards "mobility" on consideration of the evidence I find that the child receives the lower rate mobility allowance in terms of Disability Living Allowance. However the evidence points that this relates not to any physical impairment (such as an amputated limb) but rather to the child's lack of function in getting around in the most general sense. In particular that disability - as it may in fact be, is related even on the evidence of Dr Roy to safety concerns which overlap with the child's perception of danger be it road sense or of other people or danger to self. As Dr Taylor put it in her evidence - which I accept - this lack of perception by the child is not just a manifestation of ADHD but goes beyond that. The child's functional disability arises from the child's tendency to focus on one matter above all others at any particular time, without regard to his own other people's safety. Moreover his perception of "stranger danger" is limited due to his difficulty in reading other people's motives which in itself is based on the egocentric world view which is a consequence of the condition of Asperger's Syndrome.

 

In my view the fact that the child has a Record of Needs must be seen as an indicator of an underlying problem namely the initial diagnosis of ADHD and ODD by a Dr Renfrew in 2001 and it cannot in my view be said, in itself, to point to a disability. As Ms Martin put it, and I accept her on this, the opening of a Record of Needs effectively identifies that a child has special needs and allows a continuous assessment of the needs and forms of care for any particular child in a school. In any event, we now know that the ultimate diagnosis made on 14 March 2005 shows that the child suffers from Asperger's Syndrome which both Dr McKay and Dr Taylor agree is a life long condition with which someone is born. One outcome of Asperger's Syndrome because of its manifestations is lack of ability to learn and understand conditions which are referred to in paragraph 4(1)(g) of Schedule I.

 

In reviewing the evidence I find that the difficulties which the child has in his environment, be it at school, at home or generally in any social situation have a resonance too in the 4(1)(g) factor.

 

As regards the Ritalin prescribed to the child, I accept Mr Nisbet's submission that the Court in determining whether there is a substantial long term adverse effect must disregard it. However, standing that it is prescribed for the child's behavioural difficulties, particularly ADHD, it does not seem to me to be a significant matter in any event in reaching a concluded view as to functional difficulties the Court is required to examine to assess the child's disability.

 

I must not pass on without saying that Dr McKay's evidence that the child's road sense was within the range of other eight year olds, I found to be persuasive. At the time that Dr McKay gave his evidence, no diagnosis of Aspergers had been reached and I do not recall he was specifically examined on whether he had changed his view on this matter when he was recalled on the seventh day of evidence.

 

In my view the balance of the evidence leads to a conclusion that the other alleged signifiers of disability in terms of the DDA are based on what came to be the ultimate and accepted diagnosis, namely that the child has from birth suffered from Asperger's Syndrome whose deficits and impairments as regards the formal definition of disability I have mentioned above.

 

It comes to this that the child was disabled as at 1 March 2004, but that because the impairments he had then were largely due to the questions of learning and understanding and as one might expect, in hindsight, are there because of the fact that we now ultimately know that he has and does suffer from Asperger's Syndrome. Whether, of course, the Defenders can be said to have a defence in terms of DDA through lack of knowledge of the various signifiers to which Mr Nisbet with some care referred in his submissions, I deal with in a later section of this note.

 

As a coda for this section I should briefly mention that the Defenders had objected to the Pursuer's witnesses being asked by Mr Nisbet whether in their view the child was disabled. The basis of that objection was that the duty was on the Court to establish whether the person was disabled in terms of the DDA. I allowed the question and answers under reservation. I came to the view that it would be difficult in such a complex area of fact and law to preclude expert witnesses giving their opinion based on their experience of whether a person is disabled or not. Effectively, though in allowing this line of question, the Court is only allowing the witnesses to state and expand the reasons "why" they have come to that view. In my view Counsel for the Defenders was right to make the objection to the extent that making the objection assisted the Court ultimately to be aware that it is, indeed, the Court which has to make the determination. The Court is, of course, only assisted by the views of expert witnesses but must be careful, as I trust I have been, to differentiate those views from the Court's duty to apply its own mind to the evidence as to the facts and then to apply the statutory tests in terms of DDA, the Code and previous authorities. Accordingly, I have taken the evidence given by the witnesses as to their views as regards disability under consideration, only to the extent as stated above, reserving the ultimate duty and function to myself in deciding the question of "impairment" and "disability".

 

 

 

 

Was the child's behaviour on 1 March 2004 related to his disability?

 

Parties were agreed that the onus was on the Pursuer to show that the behaviour which led to the child's exclusion from school on 1 March 2004 was related to his disability. If it could not be shown, then the action would fail. As Counsel helpfully noted the decision on the factual question as to whether his behaviour was related to his disability was a most difficult one given the apparent conflict of evidence between Dr Taylor and Dr McKay.

 

First of all I deal with the facts of the incident of 1 March 2004 which are not really in dispute and they could be summarised as follows. These are largely taken from the evidence of the head teacher at his school, who was the decision maker on the exclusion, and from the incident reports to which she spoke, which latter were compiled by members of her staff: these are 6/1/24 and 6/1/25 of Process.

 

On 1 March the child was at the school. Lunch is taken normally from 12.20 until 1.20 pm. Prior to that the child had been upset because another boy had taken hold of a football during an earlier pre-lunch game of football. It would appear that the child calmed down during the lunch break. During the resumption of football after lunch, the child complained that the ball was being kicked too hard. The member of staff supervising the game reassured the child and told the other children not to kick the ball so hard. During the game the child and another boy gave chase to the ball. The other boy got to the ball first and kicked it back towards the others. The child punched the other boy. The member of staff remonstrated with the child as to his behaviour. The child then took his jacket off and swung it round and hit the staff member in the face. He was told not to do that but tried to hit the worker again. He spat in the support worker's face. She called for assistance and the child grabbed the support worker by the collar and grabbed her throat. He spat in her face again. He pulled her clothing to the front of her throat. The lady found it hard to breathe. Three other staff members came and the child assaulted them too by throwing a shoe and spitting. He punched one of those classroom assistants. He kicked the head teacher. He bit another member of staff and spat again. He was taken inside the school. Whilst inside the school he assaulted members of staff by threatening them with a brush staff and a pole. A door was closed on him to prevent further assault. The child battered on that door and upturned chairs and rubbish bins. He urinated against the door. The child's mother was contacted to remove him but could not attend. The child's grandfather came. The child behaved in a threatening manner towards his grandfather saying that he wanted his mother. The boy was removed from the school. The incident after lunch lasted for about twenty minutes.

 

It was as a result of that incident that a decision was made by the head teacher to exclude the child from school for twenty days which is the act which, inter alia, is said by the Pursuer to be discriminatory being less favourable treatment. I will deal with the Defenders' "justification defence" at a later stage in this note.

 

The Pursuer's submission was that the question for the Court was whether the behaviour was related to his disability. Mr Nisbet submitted that the test is broader than that used in other anti-discrimination acts such as the Sex Discrimination Act and the Race Relations Act. This proposition is supported by the decision of McAuley Catholic High School v C [2004] 2 ALL ER page 436 at page 455. There is further support from a decision in a later case V K v Norfolk C.C. SENDIST [2004] EWHC 2291 (Admin). In that case the High Court Judge under reference to the McAuley case stated that the test is not whether the treatment was "solely" related to the disability but merely whether it was related to the disability (paragraphs 48 and 49).

 

Mr Nisbet relied upon the evidence of Dr Taylor that an autistic child such as the Pursuer's child, likely to be suffering from Asperger's Syndrome would fail to understand the normal rules of football. The trigger would be the egocentric nature of the child. When the other boy got to the ball first the child would be unable to understand that that was what football was all about. For the child he would have in mind his own view of the world that he wanted the ball. The other boy getting the ball interferes with that view and becomes catastrophic to him and precipitated the violence which then escalated in the manner described in the incident reports. She gave evidence that the incident was very closely related to the child's impairment.

 

Moreover, Mr Nisbet founded on the evidence of the Defenders' expert, Dr McKay, as Mr Nisbet interpreted it, that the condition of Aspergers would have a more determinative effect and that a child having that condition makes it more likely that more of the child's behaviour would relate to that condition. Further that when Dr McKay was recalled (after the formal diagnosis of Aspergers) to give evidence in light of that diagnosis, Dr McKay had said that there was likely to have been a relationship between the incident and the child's Asperger's Syndrome. Dr McKay was not able to agree that Asperger's Syndrome directly led to the behaviour but was able to agree with the Pursuer's submission that the child's behaviour was related to Aspergers.

 

Counsel for the Defenders, in acknowledging that the evidence on this chapter was difficult, submitted that the causes of violent behaviour generally, or in connection with any particular incident, are seldom simple to explain. This was drawn from the evidence of Dr McKay. There are usually a combination of factors to be addressed. As Dr McKay had put it there is a combination of "nature" (what a person is born with), "nurture" (the persons upbringing) and "now" (the immediate circumstances that covers both the internal frame of mind and the external events being experienced by the child). Dr McKay's evidence, she submitted, was that all of the factors would have played a role in the child's behaviour on 1 March 2004.

 

Counsel further submitted that it could not be said that violence was a feature of Asperger's Syndrome nor that Asperger's Syndrome was generally accompanied by behavioural difficulties. The Court was invited to accept Dr McKay's evidence that identification of reasons for the child's violent behaviour on that date was a complex issue. Those suffering from Asperger's Syndrome can, as Dr McKay said, behave badly. She submitted it would be unreasonable to attribute all difficult behaviour to the Asperger's Syndrome itself. There could be an emotional explanation for the child's behaviour rather than it being related to Aspergers; again she relied on the evidence of Dr McKay. She further submitted that the Court should not "stigmatise" children with Asperger's Syndrome as being more likely to display bad or violent behaviour than those who do not have that condition. It was submitted that in all the circumstances the Pursuers had not established, on the balance of probabilities, that the violent behaviour displayed by the child on 1 March 2004 was related to the disability, the impairment in the ability to understand and learn, which has now been diagnosed as Asperger's Syndrome.

 

 

 

Reasoning

 

Section 28B of the DDA provides in sub-Section 1(1) -

"For the purposes of Section 28a [which makes discrimination against disabled pupils and prospective pupils unlawful], a responsible body discriminates against a disabled person if -

(a)    for a reason which relates to his disability it treats him less favourable than it treats or would treat others to whom that reason does not or would not apply."

 

The important words are "for a reason which relates to his disability".

 

I am satisfied, further, that the correct legal approach is to approach the question of whether a matter relates to a person's disability as a matter of fact (Clark v Novacold [1999] 2 ALL ER 977 at 986). I accept the reasoning of Mr Justice Silber in the McAuley case (Supra) as persuasive that the words "for a reason relating to his disability" are broader and should be given a wider meaning than the words "on the ground of" or "by reason of" contained in the other anti discrimination acts. It must, in my view, include wider causative links than apprehended in those two previous definitions (I adopt the reasoning of Mr Justice Silber at page 445 paragraph 42). In effect "in relation to" has a wider more permissive meaning than being directly attributable to. This approach found favour in the opinion of Mr Justice Burnton in the V K case (cited above) in the context of a discrimination case on appeal to the High Court in England from SENDIST which as I have noted above has broadly the same jurisdiction as the Sheriff in discrimination case arising from education matters. I respectfully agree with the learned Judge that it would be an error to approach the question on the basis of the behaviour relating "solely" to the persons disability (paragraphs 48 and 49).

 

I now turn to examine the evidence against that legal background. It bears repeating that the evidence was complex and has taken much anxious consideration. Dr Taylor is a consultant psychiatrist of nineteen years standing with a particular interest in Autistic Spectrum Disorders who is on the National Autistic Society list of recognised specialists. She often relates to teachers when she is called upon to treat children. She had seen the child, his parents and had copies of his school and psychological reports. Her report is 5/1/21 of Process. In her evidence Dr Taylor was referred to the reports of the incident of 1 March 2004. The background to that she deponed, without challenge, is that Asperger's Syndrome is usually found in children of average or above average intelligence. Children suffering from Aspergers have significant impairment of their social interaction and their communication. They have difficulty with imagination, in seeing somebody else's point of view. They live in a world which is almost entirely egocentric. They find it difficult to read other peoples facial expressions or non verbal communication. They have difficulty in understanding rules in team games. When giving evidence on the incident reports she stated that it is significant that just prior to the incident another boy had taken the ball away from the child when the child felt that he should have had the ball to take into school. Dr Taylor said that the child would have perceived as an actual rule the fact that he was to take the ball into school. He, unlike another child, would not be able to accept that someone like a teacher could deal with the perceived difficulty over who is to take the ball into school. Whist the incident report indicates that the child had calmed down, a child like him (on the autistic spectrum) would tend to ruminate upon that and become fixated and would have a fairly negative state of mind. That earlier incident over the ball would be going round and round in his mind. As regards the incident in the playground during the subsequent football match, the child, being on the autistic spectrum, would find it difficult to understand the rules of football although he may have actually known them. It is difficulty for such a child to apply the rules. The fact that the other boy got to the ball first would be catastrophic for him and would precipitate the violence that ensued. The incident in her view was very closely related to the impairment of lack of ability to learn and understand. She was asked whether the child's behaviour could be described as being unpredictable and having no obvious trigger. Her evidence was that the question is one which she often hears from parents and teachers who describe the sometimes violent behaviour of children who are on the autistic spectrum. The reality of such a child's behaviour she deponed, lay in their tendency to treat something which upsets them in a very focussed way and to ruminate upon it for hours or even days. Then something else in their experience triggers their thinking relating back to that earlier upset. That new experience in itself may seem to be innocuous and the person dealing with the child might not recognise that they have done something to upset the child. On being asked whether the child's behaviour was related to his impairment she said it was due to the child's distorted thinking. His wish to target the other child would be based on his distorted perception of the world and those around him. In particular she ruled out the possibility that emotion might be a factor in the child's behaviour in general. She was asked to comment on the fact, as such it is, that the child's parents had separated. She said that persons on the autistic spectrum are often less affected by emotional events precisely because their world is so egocentric. In cross-examination, it was put to Dr Taylor that Dr McKay's view was that the child's behaviour in general or on any one occasion was unlikely to be understood to be related to a simplistic or one dimensional view namely that it related to his disability. Dr Taylor, in answer, disagreed with that on the basis that if a person suffers from an Autistic Spectrum Disorder, that means that that is part of who that person is and affects everything they do. She agreed it would be simplistic to say that a specific incident of violent behaviour results, for example from the person's disability but the disability would affect everything that person does or says. An Autistic Spectrum Disorder is a contributing factor to all aspects of a person's behaviour. In relation to the particular child she later said in cross-examination, with reference to earlier evidence as regards the child's agitation in playing games that whilst there can be no certainty, it could be said that the child's health difficulties would have had a substantial contribution to the child's behaviour at any point in time.

 

The Defenders led Dr McKay who is a chartered clinical psychologist, who is a fellow of the British Psychological Society. He is also clinical director of the National Diagnostic Assessment Service for Autistic Spectrum Disorders. He has written reports on Autism for the government. Dr McKay had prepared a report on the child (6/2/39 of Process) after meeting the child, his parents and studying school and psychological records.

 

In his very carefully thought out evidence when he was first called (and I pause to remind the reader that this was on the third day of evidence in November 2004, prior to the diagnosis of Aspergers in 2005) Dr McKay identified three categories which affect behaviour - "nature", "nurture" and "now". Dr McKay was asked whether a child who may be on the autistic spectrum is less likely to affected by emotional events such as parental separation. He agreed but under reservation that he had to approach the matter with caution. He was at pains to say that a child on the autistic spectrum is likely to respond in a different way to emotional events than children who have developed normally. A child with Asperger's Syndrome will show a significant impairment in social relationships. They are likely to be more egocentric. Much would depend on what was then anticipated at that time, namely a full assessment of the child at the National Diagnostic Centre. If Aspergers were to be diagnosed then the influence of "nurture" would have less relevance than "nature". As regards the concept "now", for the subject child this would depend on his medication, his own thoughts and feelings. A "trigger" for this child could be a change in his normal routine or a task or activity not working out as he would have wished. The thrust of Dr McKay's evidence was to come to a view that the child's violent behaviour whether in general or on 1 March 2004 could not be understood in simplistic or uni-dimensional terms of being said to result from a disability. It was a more complex issue involving several components. In particular in terms of his then knowledge of the child (again remembering that this was a time when the official diagnosis of Aspergers had yet to be made) it would in his view be too simple to describe the violent behaviour on any occasion as simply being the result of disability. Later he accepted that the child could be said to be "screen positive" for Asperger's Syndrome but with some caution he would wish to know the outcome of the planned full assessment which was then yet to be done. In cross-examination Dr McKay agreed that an external factor was likely to be the trigger of the child's behaviour on 1 March 2004, this would be the interpretation made by the child of the other boy getting to the ball first. He accepted that if the child was subsequently diagnosed to have Aspergers that event could trigger the outburst given that the child could then be said to have a difficulty in reading social situations (which was a defining characteristic of Asperger's Syndrome). He agreed that if the child was diagnosed to have Aspergers he would more readily be able to say that "nature" played a more significant factor than "nurture" or "now".

 

After the diagnosis that the child was indeed suffering from Aspergers, Dr McKay was recalled on 26 May 2005. He confirmed his earlier view that the child's ability to learn, in the setting of the school curriculum, which was good, was not affected by the diagnosis of Aspergers. However the Aspergers diagnosis confirms the child's difficulty to learn and understand in terms of life skills, social understanding and social competence, and the child's ability to interpret situations and to respond to them appropriately. Counsel asked Dr McKay, in light of the diagnosis of Aspergers now made whether there was a direct correlation (these were Counsel's words) between bad behaviour and violence and Asperger's Syndrome. Dr McKay said that it was a complex question as not all children with Aspergers show bad or violent behaviour. It would be unreasonable to attribute all (my emphasis) difficult behaviour to Asperger's Syndrome but for someone with Asperger's Syndrome a bigger proportion of their difficult behaviour would be accountable for under the heading of "nature". In particular, as regards the events of 1 March 2004, he could not say whether that was due to Asperger's Syndrome or just bad behaviour. However, if a child has Aspergers, it is more likely that more of their difficult behaviour can be explained within the context of suffering from that condition but one could not be certain (my emphasis). He said in answer to a question of possible stigmatisation of person suffering from Aspergers, as violent persons, that he agreed that one should be careful not to attribute to Asperger's Syndrome a view that violence is a part of that condition as that might well serve to stigmatise them.

 

In cross-examination by Mr Nisbet, Dr McKay agreed that whilst bad behaviour cannot be said to arise from having Asperger's Syndrome, that more of their difficult behaviour would be attributable to that condition than a person who does not have that condition. On being asked by Mr Nisbet whether there was a relationship (my emphasis) between the child's behaviour on 1 March 2004 and the child having Asperger's Syndrome, Dr McKay answered that there was likely to have been a relationship. That whilst he could not say that the behaviour was directly attributable (his words) to Asperger's Syndrome he could at least say that the behaviour of the child related to the Asperger's Syndrome.

 

I repeat that this aspect of my judgement has been difficult and for that reason I have set out the evidence of Doctors Taylor and McKay at some length.

 

The Court was having to assess two eminent and experienced witnesses who have approached the writing of their reports and their evidence to the Court with great care. I was particularly impressed I should say with Dr McKay, who impressed me as a very careful witness, deliberating carefully over his replies and the judgements that he was called upon to make. No criticisms of course is intended of Dr Taylor whose evidence also was carefully given but it is proper to say that Dr McKay's approach which supports much of what Dr Taylor had found is of particular significance.

 

Ultimately in restating and summarising the evidence as I have and including too, some of the questions which prompted the answers each of these experts gave, I have been drawn to the conclusion, in light of the terms of the DDA and the authorities to which I have referred, that on a balance of probabilities it is more likely that the child's behaviour on 1 March 2004 was related to his disability. It is of course agreed now that the Asperger's Syndrome, which is a condition that the child was born with, did subsist on that date and that Asperger's Syndrome has as one of its manifestations a difficulty in the subject being able to learn and understand in social situations.

 

In my view, not too much can be made of the difference in evidence apparently adopted by the two experts. For example, Dr Taylor was more sure, at the time of her examination (prior to the formal diagnosis) that the child was suffering from Aspergers while Dr McKay would only say that he was "screen positive" for that syndrome. In my view and in my experience, experts are likely to vary in their degrees of emphasis and indeed in the relative strengths they attach to a particular possibility.

 

However, a close and careful reading and consideration of the evidence of both Dr Taylor and Dr McKay draws me to the view that the child's behaviour was more likely to be related to Aspergers with its consequential impairments, than what Dr McKay described as the "nurture" or "now" which one must say Dr McKay ultimately acknowledged.

 

In my view, Counsel for the Defenders questions tended to invite a view that the child's behaviour could be said to be directly attributable to Aspergers. In my view, although the evidence of Dr Taylor might tend to indicate that was the case and Dr McKay's evidence not so to indicate, that is not the question for this Court. The question is was the behaviour on 1 March 2004 related to his disability namely the ability to learn and understand social matters in this case in particular relation to the football match. I am satisfied that when the witnesses were directed to the appropriate question and having looked at their answers, it is proper to hold that they were in agreement on that essential matter.

 

I should also say that, with respect to Counsel, that it is no part of this Court's function to seek, or not, to "stigmatise" persons with Aspergers as being violent people. It would seem to me clear from both experts that it cannot be said that people with Aspergers are more likely to be violent people than others. Rather the position is that for people suffering from Aspergers their behaviour is more likely to be explained by them suffering from that condition. The Court has to see whether a relationship between the behaviour and the disability has been established; the Court is not ascribing a judgement.

 

Thus being satisfied that the child's violent behaviour on 1 March 2004 was related to what ultimately was diagnosed as Asperger's Syndrome, the Pursuer established what they required to at this juncture of the case. That is to say that the behaviour of the child was related to his impairment to carry out normal day to day activities in that the child was affected in his ability to concentrate, learn and understand and that had particular relationship to the incident involving the football and the subsequent game of football on 1 March 2004.

 

There is no dispute by the Defender that the child's violent behaviour was the reason for his exclusion.

 

Whether the child has been treated less favourably contrary to Section 28B(1)?

 

Having decided that the child's behaviour was related to his disability, I now have to decide whether he has been treated less favourably as regards the exclusion decision of 1 March 2004.

 

The statutory position is as follows: In terms of Section 28B(1) of the DDA

"For the purposes of Section 28A, a responsible body discriminates against a disabled person if -

(a)    for a reason which relates to his disability it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and

(b)    it cannot show that the treatment in question is justified".

 

The Court is required to have regard to the Code of Practice for Schools (2002) issued by the Disability Rights Commission at the request of the Secretary of State for Education and Schools, in terms of Section 53A of the DDA. The Code applies to Scotland. The Court must take into account any part of the Code which appears to be relevant.

 

At Paragraph 5.6 of the Code it is stated (as regards Section 28A and Section 28B(1))

"In effect this means that there are three questions to be asked in determining whether unlawful discrimination, in relation to less favourable treatment, has taken place:

 

Is the less favourable treatment for a reason that is related to the child's disability?

 

Is it less favourable treatment than someone gets if the reason does not apply to him/her? and

 

Is it less favourable treatment than can be justified?"

 

Assistance to this Court as to what is the appropriate comparator to be applied can be found in the McAuley Catholic High School case (Supra). This is the same test as is used in employment cases (Clark v Novacold [1999] 2 ALL ER 977). Consequently I am persuaded that the proper comparator is a pupil who is neither disabled nor badly behaved (see paragraph 44 of the McAuley case). This approach was also adopted in a more recent case, again before the High Court in England on appeal from SENDIST, namely R v Governing Body of OL Primary School and SENDIST [2005] EWHC 753 at paragraph 6. In that case the Deputy High Court Judge said "Somebody who is not disabled and behaves properly is the correct comparator, not a person who is not disabled but behaves badly".

 

The alleged discrimination, in part, in this case is the exclusion from school of 1 March 2004. This occurred, potentially, if the body responsible for the school (the Defenders) discriminates against him, as a disabled pupil, by excluding him from the school whether permanently or temporarily (Section 28A(4)).

 

It seems clear that given I have decided that the behaviour of the child was related to his disability that further application of the comparator referred to, leads to a conclusion that prima facie the Defenders have treated him less favourably for a reason related to his disability.

 

I did not understand Counsel for the Defenders to take issue with that proposition in her written submissions. (Although it must be remembered that her primary submission was that, of course, the behaviour of 1 March 2004 was not related to the child's disability). Later Counsel seemed to question the logic of the McAuley case but not by going into any detail as to her concerns.

 

Having studied the case of McAuley which follows the leading case of Clark v Novacold in Employment Law, and the case of R v The Governing Body of OL Primary School, I am satisfied that the comparator identified as the appropriate one, namely someone who is not disabled and who behaves properly. There appears to be no Scottish authority but I do find the decisions of the English High Court on this point persuasive.

 

Consequently the child's behaviour being for a reason related to his disability, in my view, the appropriate comparator as stated above falls to be applied.

 

Having reached the conclusion that prima facie the child has been discriminated against by being treated less favourably than a child who is neither disabled nor badly behaved, by his exclusion from school on 1 March 2004, I now turn to the defences which the DDA allows the Defenders to advance.

 

An outline of the statutory defences open to the Defender.

 

It requires to be stated at this point that Section 28B creates two categories of unlawful discrimination. The first is that for a reason related to his disability, a responsible body treats a disabled pupil less favourably than it treats or would treat others to whom the reason does not or would not apply. (Section 28B(1))

 

The second category is that of failing to comply with Section 28C in placing disabled pupils at a substantial disadvantage in comparison with pupils who are not disabled (Section 28B(2)).

 

The Court requires to note that a breach of Section 28C is not actionable in itself but imposes duties only for the purposes of determining whether a responsible body has discriminated against a disabled person (Section 28C(8)).

 

Section 28B creates statutory defences to both these categories of unlawful discrimination. In relation to a complaint by way of less favourable treatment, it is a defence for a responsible body to show that either (my emphasis) its action is justified by a reason that is both material and substantial (Section 28B(7)) or that it did not known and at the time in question could not reasonably have been expected to know, that the complainant was disabled (Section 28B(4)).

 

In relation to a complaint of discrimination by reason of a failure to comply with Section 28C (a failure to take a particular step) it is a defence for the responsible body to establish either that its action was justified for a reason that was both material to the circumstances of the particular case and substantial (Section 28B(7) and (8)) or that it did not know and could not reasonably have been expected to, that the complainant was disabled and its failure was attributable to that lack of knowledge (Section 25B(3)).

 

I therefore now turn to the defences raised by the Defender. Firstly, I deal with the defence "lack of knowledge".

 

Lack of knowledge.

 

The Defenders aver in Answer 2 that they did not know and could not reasonably have been expected to know that [the child] had Asperger's Syndrome. They also aver in Answer 8 "that esto the Pursuer did have a disability - which is denied - at all material times the Defenders did not know and could not reasonably expected to know about it".

The Pursuer submits the material time to assess the knowledge which might be ascribed to the Defenders is at the date of the exclusion, namely 1 March 2004. Mr Nisbet submitted that a detailed knowledge of a particular diagnosis or of a named disability is not required. He referred to paragraph 7.8 of the Code of Practice for Schools (Supra) which states that it may not be immediately obvious that a child is disabled. Under achievement and difficult behaviour may, in some cases, indicate an underlying disability which has not yet been identified. A responsible body may have difficulty claiming not to have known about a disability if, on the basis of such indicators, it might reasonably have been expected to know that a pupil was disabled.

He drew the Court's attention to the case of Heinz Company Limited v Kendrick 2000 IRLR 144 and submitted that the present case was similar. He invited the Court to conclude that here, as in the Heinz case, the present Defenders had all the information which they required, save for the fact that the condition from which the Pursuer was suffering was not identified by name and confirmed by a medical officer until shortly after the exclusion (the Heinz case being an employment case of course dealt with dismissal) (see paragraph 45 of the Heinz case).

He submitted that the head teacher of the school in question, the principal decision maker, as regards the exclusion was aware of the following. Firstly, that the child was diagnosed with ADHD and ODD. Secondly, that the child had behavioural difficulties. Thirdly, that the child had difficulties with social situations. Fourthly, that the child required structure and routine in his life. Fifthly, that he had been referred to Yorkhill Hospital (the National Diagnostic Centre for Autism) for assessment as regards an Autistic Spectrum Disorder. Sixthly, that the child had a Record of Needs, and that a Record of Needs would be opened for a child with particular complex needs. Moreover, the witness Caroline Martin (a psychologist employed by the Defenders) had confirmed that a Record of Needs was opened for children with the most severe and complex needs and only about two per cent of the school population have a Record of Needs.

Counsel for the Defenders disputed that the Heinz case was to be followed as it dealt with an employment cause and the case suggested that the test was an "objective" one rather than what she submitted ought to be the test namely a "subjective" one. She referred to the Code, example 7.6, where it is stated that schools need to know that a child is disabled and that they need to have some knowledge of the nature of the child's disability if they are to ensure that they do not treat the pupil less favourably. The same applies if the school is to make reasonable adjustments for the disabled pupil. For, despite the fact that the reasonable adjustments duty is owed to disabled pupils in general, the school would need to know when and how to apply any specific arrangements. Counsel argued that the Code is silent as to whether the test is "objective" or "subjective", in answer to a question from me. She submitted therefore that this Court would have to decide whether it is either an objective or subjective test having regard to the Code and the cited cases. Counsel further submitted that the reasoning in the Heinz case was doubted by a later case of the E.A.T. in England namely Ramdoolar v ByCity Limited [2005] I.C.R. 368. The correctness and applicability of the ratio of Heinz must be cast into doubt when two cases in the same jurisdiction disagree as to the nature of the test.

Further, Counsel drew my attention to a Scottish decision on appeal to the E.A.T. which she submitted was of assistance for the Defenders. This is the case of Lanarkshire Primary Care NHS Trust v Naicker (apparently not yet Reported but issued on 18 May 2005). In that case the E.A.T. chaired by Lady Smith held that a date when the responsible body ought to have known of the disability requires to be fixed by the fact finding tribunal and that must relate to knowledge of an impairment in terms of Section 1 and Schedule I of the DDA.

As regards the factual matters which the Defenders relied upon, Counsel pointed out that the child was not diagnosed with Asperger's Syndrome until 14 March 2005, over a year after the decision to exclude. She submitted it was not open to the Defenders to assume on 1 March 2004 that the child was disabled by reason of Asperger's Syndrome. The Court should recall and prefer the evidence of Dr McKay that it would be premature (in advance of a full diagnosis) to say that the child had an Autistic Spectrum Disorder. Moreover as regards possible signifiers of disability for the child's behaviour, there was evidence that he could cope well in social situations. The mere fact that he had been referred to the National Diagnostic Centre was a far cry from being able to attribute knowledge of an Autistic Spectrum Disorder to the Defenders. The Court should recall that the decision to exclude was by a head teacher, not by a medically qualified person.

As this question of "lack of knowledge" was of great significance, I allowed Mr Nisbet to reply and indeed Counsel to retort.

Mr Nisbet urged caution as to the difference between the ratios in both the Heinz and Ramdoolar cases. The latter was a sex discrimination case where there is no lack of knowledge defence per se, and the case was concerned with pregnancy which is to say whether one was pregnant or not whilst disability depends on a judgement being made. The words of the DDA "could not reasonably be expected" must mean that the test is objective where even in the absence of actual knowledge an inference of knowledge can be made. If in fact actual knowledge was required when could it ever be said that a responsible body could be reasonably expected to know? As regards the Lanarkshire case, the E.A.T. were concerned as to failure by the tribunal to fix the date when knowledge could be fixed and here it might be said it was when the ODD and ADHD were diagnosed, namely by Dr Renfrew on 17 December 2002. However, he did accept that this might not be significant for the decision in this case. Importantly both Dr Taylor and Dr McKay had given evidence that ADHD was a life long condition and that the child may have an Autistic Spectrum Disorder - given the referral to the National Centre for assessment.

Counsel relied on the approach adopted by the E.A.T. chaired by Lady Smith. Counsel submitted that in this present case there were other explanations for the behaviour at the time the decision to exclude was made, namely possible emotional disturbance. Accordingly, a date required to be fixed as to when the knowledge of disability might be inferred. She submitted that the present Court in the absence of any evidence adduced as to when the Defenders knew or ought to have known that the child was disabled should not reach a judgement that they ought to have known. She said that no questions were put to the Defenders' witnesses on this matter. The Court should not presume for itself when the Defenders knew or ought to have known when the child was disabled.

Reasoning

I start with the question as to whether the test is "objective" or "subjective". The starting point in my view must be the legislation. There are two aspects. Firstly a straightforward one that the Defenders did not know. It is clear that they, and their employee, the Head Teacher did not know that the child had Asperger's Syndrome as at the date to exclude on 1 March 2004. The diagnosis was only made over a year later. However, Parliament has not said only that such as the Defenders must (actually) know but have provided that the defence has to cross a further hurdle to succeed, namely that the Defenders could not reasonably have been expected to know. The latter words in my view are most important and significant. I find myself in agreement with the Pursuer's submissions that a proper reading of the legislation must be that the test is objective. The imputation of knowledge to such as the Defenders will only arise when the Court, or a tribunal, comes to answer that question which is only ever likely to occur after the event in my view. Parliament has anticipated that by the words "reasonably expected to know" and has recognised this potentiality. The point is: What could the Defenders have reasonably known? It may include what they did actually know as well as what, based on the circumstances of a particular child, they ought to have known as regards his disability. The two references to the Code by the Pursuer and the Defenders are useful but in my view are not determinative. I am obliged to take them into account so far as I find them relevant. The examples from the Code do not assist in deciding whether the test is objective or subjective. What, however, I take from both examples in the Code is that the Defenders must have some (my emphasis) knowledge of the child's disability so as to ensure that they do not treat the child less favourably. It is not necessary that they need to know the actual diagnosis which often only arises after the event. The correct approach in my view is that identified by the E.A.T. in the Lanarkshire case. The duty (or in the present case the imputation of knowledge) cannot arise unless the employer (here the Defenders) knows or ought to have known of the various factors identified in Section 1 as explained further in Schedule I of the DDA.

 

So, in my view, the question properly put is whether the Defenders could reasonably be expected to know then involves a consideration of what information is available to them as to the deficit the child suffered. The date, is important. It seems to me that what the E.A.T. were saying in the Lanarkshire case was that what the tribunal of fact has to do is to determine as a matter of fact when the imputation of knowledge can be fixed. In this case, in my view, the date is the decision to exclude namely 1 March 2004. The question becomes what did the Defenders know (represented as they are by, and responsible for the decision of, the Head teacher when she excluded) as to the matters set out in Section 1 and Schedule I as regards this particular child.

 

In my view it is not necessary for the Pursuer to specifically ask any of the Defenders' witnesses what they knew: it is sufficient that it is explored what they knew and that, ultimately, at the time the potentially discriminatory act was carried out (here the exclusion).

 

I should say I have not been particularly assisted by either the Heinz case or the Ramdoolar case. Having read them they seem to me to turn on the facts presented to the original tribunals of fact and at the E.A.T. level on what legislation or regulation was to be construed by the tribunal and thus by the E.A.T. I have found neither, with respect, very helpful in deciding the question before me. Accepting the correct approach is that identified by the E.A.T. in the Lanarkshire case, I now turn to what was within the knowledge of the Head teacher, the decision maker on 1 March 2004.

 

I have re-read with some care the evidence of the Head Teacher and Caroline Martin, the educational psychologist who advised the review meetings which the Head Teacher either attended or the minutes of which other meetings she had received.

 

I have come to the view that the Pursuer's summary of what was in the knowledge of the Head Teacher is an accurate one. She was aware that the child had ADHD and ODD, that he had behavioural difficulties, that these difficulties were particularly manifested in social situations, that the child required structure and routine, that he had been referred because it was felt (if not actually known) that he may be on the autistic spectrum to the National Diagnostic Centre at Yorkhill Hospital, and that the child had a Record of Needs.

 

It seems to me that there was therefore quite a substantial body of information which pointed to the child having an impairment (in terms of Schedule I (g) namely a deficit in ability to concentrate, learn and understand.

 

The important point one must immediately recognise, as Counsel makes, is that the lady was not medically qualified. However, she had experience of this child in particular, and further his history. It is not a case of this Court ascribing any "blame" to this lady. It is a matter of looking "objectively" to see what was within her knowledge as regards to the possible impairment in terms of Section 1 Schedule I. There was available to her (and thus the Defenders) sufficient knowledge based on the reason which the Pursuer has identified. I should say that I have not been influenced in this chapter of my decision by the evidence of Dr Taylor that she was almost sure that the child was suffering from Aspergers on 1 March 2004. Nor have I been influenced by Dr McKay's more measure judgement that the behaviour could not at that date be ascribed to Aspergers without a full diagnostic study being undertaken. Their expert views were not of course available to the Head Teacher at the time she made her decision. I stress, as I feel it must, the test has to be: what was within the knowledge of the decision maker as regards the impairment of the child, in terms of Section 1 and Schedule I of the DDA as at 1 March 2004.

 

One aspect of the Heinz case which does seem apposite set against what I have said, is the comment, in that case, that what the Court should do is to look to the knowledge that the decision maker had and ask whether that decision maker is in the position to ask whether the reason for her contemplated decision (there a dismissal and here an exclusion) might relate to disability (see the Heinz case page 499 paragraphs A to G).

 

It seems to be clear that the information which is available to her was of that quality.

 

I have, therefore, for all the reasons I have outlined been drawn to the view that the Defenders have failed to establish the "lack of knowledge" defence and, indeed, the Pursuer has succeeded, to the contrary, to show that objectively that it was knowledge that can be reasonably imputed to the Defenders.

 

One, with caution, has to remember, reverting back to my decision (above) as regards whether the child was disabled due to other conditions, that all I require to answer in this present chapter is what was within the knowledge of the decision maker/defenders at the time they took the decision. I should say that the matters, for example, as regards "stranger danger" and "road sense" were not specifically or by any reasonable imputation before the Head Teacher or the Defenders. They arise as matters raised when the experts were invited to interpret the child, they do not go to the knowledge of the Defenders.

 

Justification Defence

 

Before turning to the law and the merits of this defence, I deal with the preliminary objection taken by Mr Nisbet.

 

Mr Nisbet submitted that the Defenders were not able to state and argue a justification defence as their pleadings were, he said, silent on that matter. Later, on the third day of submissions, having heard the Defenders contrary contentions as regards the apparent lack of pleading of the justification defence, and having heard further the Defenders' submissions on the merits, Mr Nisbet partially retracted from his fundamental position. He acknowledged that the court would require, given the importance of this cause to both parties, to consider the merits of the justification defence.

 

However, as I had heard evidence under reservation - Mr Nisbet having taken his objection during the evidence of the Defenders' witnesses - I require to resolve the issue before proceeding to admit the evidence to consideration.

 

The attack on the Defenders' pleadings arises from Article 10 of Condescendence within which the Pursuer deals with the question of justification. The Pursuer's position is that the exclusion decision is not capable of justification or in the alternative, that the decision was not justified. It was not made for a material and substantial reason. The Defenders' answer to that is "Denied".

 

Consequently Mr Nisbet submitted, the Defenders were not able to establish justification in the absence of even the most desultory pleadings on Record, going to justification and in the absence of a plea-in-law referring to justification.

 

He relied on the well known section of McPhail "Sheriff Court Practice" (Second Edition) paragraph 9.112 (page 301). In addition he referred to the cases of Robb v Logie Almond School Board (1875) 2R 417, Quinn v Caraeron and Robertson 1956 SLT 244 and Moffat v Marconi Space and Defence Systems Limited 1975 SLT (Notes) 60.

 

From these authorities he drew the well known rule that a defence not stated on record cannot in general be sustained by the Court. Further, from the Moffat case, that the Defenders must give notice of the statutory defence on which they rely.

 

Counsel for the Defenders' submission on this preliminary matter were that a fair reading of all of the Defenders' pleadings reveals that justification is relied upon. Under reference to the record she drew attention to the pleadings as to the circumstances leading up to the child's exclusion both as condescended upon in Article 5 and in Answer 5. Further pleadings in Article 8 of Condescendence and Answer 8 read with Answer 5 and Answer 12 indicate that the basis on which the Defenders claim their decision was justified. In summary the point being that there were sufficient averments that gave notice to the Defenders of justification and allow the Court therefor to consider the justification defence.

 

As regards the apparent lack of a plea-in-law setting out the justification defence, the Defenders relied on their present plea in law numbers 1 and 2 as they were then stated on that record at that time.

 

However, because the cause was of such importance to the Defenders, Counsel was anxious that the cause not be determined on a purely technical question of pleadings and consequently she tendered a Minute of Amendment (Number 15 of Process) to insert a new plea-in-law number 2, and to renumber the existing pleas of law. The new plea was in the following term "Seperatim the Defenders' decision being justified, the Defenders should be assoilzied".

 

It was to be recalled also, said Counsel that Mr Nisbet in his detailed submissions had anticipated and dealt with the justification defence which the Defenders were likely to advance in their own submissions.

 

Mr Nisbet was opposed to this amendment, but as I have noted above, by the third day of submission his opposition was tempered to the extent that he, too, recognised the importance of this cause being decided on the true merits. If I ultimately were to allow the amendment then the Pursuer would have no need to answer. I decided to allow the Minute of Amendment to introduce a new plea-in-law. It seemed to me that this important action should not be determined on an apparent deficiency in pleading. The Pursuer had moreover anticipated the Defenders' defence of justification and had with considerable skill sought to counter it (as will be seen in the chapter below dealing with the justification defence).

 

I was mindful, too, that the Court has a wide discretion to allow an amendment which is necessary for determining the real question and controversy between the parties (cf McPhail 10.34).

 

I had offered Mr Nisbet an opportunity, if he felt disadvantaged by any lines of evidence that might be admitted by allowing this amendment, to seek any adjournment to lead any further evidence that he thought might be appropriate. Mr Nisbet declined this offer. In allowing this amendment and indeed now admitting the evidence held under reservation to consideration I am not to be taken as seeking to depart from the normal strictures as regards written pleadings. Indeed I would say it would be most wise for any Defenders in the future who may seek to rely on the statutory defences in terms of the DDA Section 28 to set those out specifically in their pleadings to obviate the difficulties which this discussion gave rise to.

 

However, I was drawn to the view that I ought to allow the amendment which now adds a new plea-in-law going to the justification defence so that the real question and controversy between the parties might be focussed. I was satisfied that Mr Nisbet had with no little skill anticipated the justification defence and I was satisfied the Pursuer would not suffer prejudice if the amendment was allowed. Accordingly I have admitted to consideration the evidence of the Head Teacher who was the decision maker, on the reasons she felt she had to justify the exclusion. I now turn to the justification defence.

 

The Pursuer's Submissions

 

The starting point in Mr Nisbet's submissions was reference to Section 28(B)(8) and his contention that the Defenders had failed to take reasonable steps. That failure, would necessarily mean that the Defenders would be unable to justify the less favourable treatment, namely the exclusion. The reasonable step he submitted which could have been taken was to adhere to the recommendation contained in the minute of the Review meeting of 28 November 2003 (5/1/8 of Process). In particular the recommendation that playground routines for the child were to be structured and should not include competitive games where possible. Adhering to that recommendation would have been a reasonable step as it was known by the Defenders that the child had difficulty with competitive games due to his lack of social skills. If the Defenders had adhered to the other strategies contained in the minute for dealing with the child at lunch time, such as allowing him to play on his own with a computer, the incident of 1 March, involving a football game as it did, would more likely have been avoided and the behaviour leading to the child's exclusion avoided.

 

Relying on his recollection of the evidence of Mr Short (Head of Schools) Mr Nisbet submitted that the minute of that meeting of 28 November 2003 should be seen as a recording of risk assessments as regards this child. Mr Short it was said had deponed that he would have expected any changes to be recorded in the minutes of subsequent meetings. Mr Nisbet founded upon the indications that such changes were not so recorded.

 

As regards the evidence from the Defenders witnesses that it would not be reasonable to effectively ban the child from football, there was disparity between the witnesses as to what was to be anticipated as regards when the child might play football and in what circumstances. If there had been a change in strategy as regard risk assessment of the child playing football, this ought to have been recorded in the minutes.

 

Failure by the Defenders to follow the reasonable step of not countenancing the child playing football in an unstructured way had led to a detriment for the child and his substantial disadvantage in that exposing him to that football game on 1 March 2004, had led to his behaviour and thus to the decision thereafter made to exclude him from school. The reason for that is, said Mr Nisbet, that there is an inherent risk, agreed Caroline Martin, the clinical psychologist, of more challenging and violent behaviour coming from the child, by exposing the child to the playground. It was submitted that Miss Martin's evidence was that a risk/benefit analysis was required. This, submitted Mr Nisbet, entailed that the Defenders had a duty to formulate a risk assessment and reduce that to writing so that all staff having contact with the child would have knowledge of that.

 

Mr Nisbet invited the Court to consider the guidance in the Code for Schools particularly example 5.17E. That example was a good illustration that even where there were substantial reasons for less favourable treatment (a justification) in excluding an Autistic child who had hit a teacher, on the basis that justification may be found in maintaining good order and discipline in the school, there may still have been reasonable steps which could have been taken such as training the staff as to the forms of Autism and developing strategies to avoid conflict. This example in the Code had resonance it was submitted to the type of reasonable step/adjustment that the Defenders ought to have taken as regards this particular child, avoiding the possibility of the child being involved in a competitive game in the present case.

 

The second leg of the Pursuer's submissions is that the justification defence could not be made out by the Defenders in terms that the decision made was not "material" to the decision and perhaps that the decision was not made for a "substantial" reason. However, as I understood Mr Nisbet's development of his submissions he came to a view that the decision to exclude was based on a "substantial" reason but he particularly challenged that the decision was made for "material" reasons.

 

Mr Nisbet under reference to his recollection of the evidence submitted that the Head Teacher had stated that she was compelled to exclude the child due to the Defenders' policy On exclusion from school. The witness had referred to Standard Circular Number 8 (Production 6/1/4). That document stated, inter alia,

 

"Where there is an incident of physical violence against a member of staff, there should be an immediate exclusion which will not normally be less than ten days and involvement of the police if the situation demands it. Reference should be made to the Council's "Violence to Staff" Policy".

 

The Head Teacher said in light of that policy, submitted Mr Nisbet, that she had no alternative but to exclude. Mr Nisbet submitted that that policy was a blanket one which required the lady to exclude. Consequently the decision to exclude was not "material" to the particular circumstances of the case. The policy therefor prevented the Head Teacher for making decisions on the merits, whether to exclude the child or not. The Code at example 5.17A (cited above) provides an example of blanket policies which cannot be used to justify a decision to exclude a child, or in that example, denying entry to a school due to a disability which the child suffered. The example in the Code reminded decision makers that they had to look at the child's individual circumstances.

 

Mr Nisbet also referred to as yet unreported English case Thomas White v Clitheroe Royal Grammar School which had been decided at Preston Crown Court on 6 May 2002. Whilst acknowledging that that case was decided under Part III of the DDA (that section of the Act which deals with services, and not the educational sections) - the District Judge had disapproved of a decision to exclude a child from a school trip on the basis of a blanket policy (under reference to paragraph 47 thereof). Such a blanket policy had prevented the head master in that case in looking at the decision to exclude on its merits.

 

Mr Nisbet submitted that I should be persuaded by that reasoning in reaching a decision in the present case.

 

He further pointed to the evidence of the Head Teacher in the present case where it is said she said to Counsel for the Defenders that she had taken into consideration the behavioural difficulties of the child and had considered the safety of staff and indeed pupils safety. However, submitted Mr Nisbet, if the starting position for the Head Teacher is the policy to exclude, those additional factors could only go to the length of the exclusion and could not be material to the reason why she thought it necessary in the first place to exclude the child. Moreover, reference by the Head Teacher to safety of staff and other pupils referring principally to previous incidents, again could not be said to be material to the particular circumstances of the present case. It was submitted that the present Court was required to consider the reasons for the decision actually taken and was not permitted to enter into a theoretical exercise as to when the decision could have been justified. Mr Nisbet submitted the Court could not hold that although the school did apply a blanket policy, that they would still have taken the decision to exclude had they approached it with an open mind. He suggested that support for that submission could be found in paragraph 46 of the White decision above.

 

Defenders' Submissions

 

Counsel accepted that the onus was upon the Defenders to show that the treatment afforded to the Pursuer was justified. This could be done if it was shown that the reason was both "material" and "substantial".

 

She submitted that the threshold by which adequacy or sufficiency of reasons was to be measured was low. If the reason for the treatment relates to the individual circumstances in question and it is not trivial or minor, then justification has to be held to exist (H.J. Heinz Company Limited v Kendrick [2001] ICR 491 EAT at page 497.

 

Counsel referred, too, to Jones v Post Office 2001 IRLR 384 at paragraph 40 where the Court of Appeal set out the questions which a tribunal/court faced with a claim of justification might find useful to ask. These were: what was the disability; what was the discrimination in respect of the disability; what was the defenders' reason for treating the person in this way; is there a sufficient connection between the defenders' reason for discrimination and the circumstances of the particular case; is that reason on examination a substantial reason.

 

The Court of Appeal had gone on to say (per Lady Justice Arden at paragraph 41) that an employment tribunal (in the present case the Court) should not conduct an enquiry into what is the best course of action to take in all the circumstances of the case. The tribunal do not require to be persuaded themselves. They are not entitled to find that the employer's reason for the discrimination was not justified simply because they take the view that some conclusion, other than that to which the employer came, would have been preferable. Nor can the tribunal conclude that justification has not been shown simply because they entertain doubts as to the correctness of the employer's conclusion. If credible arguments exist for supporting the employer's decision, the tribunal may not hold that the reason for the discrimination is not "substantial". If, however, the employer's reason is outside the band of responses which a reasonable employer might have adopted, the reason would not be substantial. In short justification is shown provided that the employer's reason is supportable.

 

Counsel submitted that the ratio in Jones had been followed in a subsequent case of Murphy v Slough Borough Council 2004 W.L 1174219 (EAT).

 

In those circumstances, it would be inappropriate for the present Court to substitute its view for that of the Defenders. The question, properly to be asked by the Court, was whether the Defenders' decision was within the range of reasonable responses.

 

In the present case, the decision of the Defenders was justified on the basis of the reasons given by the Head Teacher. In particular, the terms of paragraph 5.5 of Standard Circular 8 that where there is an incident of physical violence against a member of staff there should be an immediate exclusion of nor normally less than ten days. The Head Teacher was mindful that the child had ADHD and ODD and considerable behaviour problems, the level of aggression and violence against staff had been taken into consideration as regards the incident of 1 March 2004 and that behaviour warranted exclusion in terms of paragraph 5.5 of Standard Circular 8. The child had been completely out of control and not responding to any member of staff. Further, the Head Teacher had considered that if another pupil who did not have this particular child's behavioural difficulties and had behaved at the same level of aggression and violence as the present child, she would still have taken the decision to exclude. The Head Teacher was justified in reaching that conclusion. She had considered it good practice to consult Mr Short, the Head of Schools, to get advice as to the exclusion and then the length of same. Mr Short had confirmed to her that twenty days was an appropriate length given all the circumstances.

 

As regards any failure to comply with Section 28C - as regards strategies that the Defenders had adopted to deal with the child's behaviour at lunch and break times - Counsel submitted that there was sufficient support from Young Strategy through their support worker at break times. Further there were regular meetings of the Community Action Team (CAT), the Partnership Action Team (PAT) and the School Action Team (SAT). These bodies regularly reviewed the child's progress. The Defenders did not need to provide a formal risk assessment because those meetings monitored the child's needs and development needs in detail. They involved drawing on the expertise of a number of different professionals. Moreover even if, which was not accepted, there had been a failure to comply with Section 28C the Defenders could, and here had, established in terms of Section 28B(7) that their decision to exclude was justified for a reason that was both material to the circumstances and substantial, that is to say again, the child's behaviour on 1 March 2004. The reasons why a decision was made to exclude were neither "minor" nor "trivial". The Head Teacher's decision to exclude was necessary as she had said to provide a period of calm and a time to reassess the child's future educational provision. She was justified to have these matters in mind and to decide as she had done.

 

Reasoning

 

It is useful at this point to refer to the somewhat complicated legal provisions regarding the justification defence.

Less favourable treatment, or a failure to comply with Section 28C is justified only if the reason for it is both material to the circumstances of the particular case and substantial (Section 28B(7)) of the DDA. In the case of Jones v Post Office (op cit) those words, in the context of the DDA were defined in the Court of Appeal. At page 389 Lady Justice Arden stated (in examining the relevant and parallel provisions in Section 5/3 as regarding employment, in the DDA) that those words covered different subject matter. "Material" denotes the quality of the connection which must exist between, on the one hand, the employer's reason for discriminating against the employee and, on the other hand, the circumstances of the particular case. At paragraph 39 her Ladyship stated that "Substantial" means that the reason which the employer adopted as his ground for discrimination must carry real weight and must be of substance. However, the word substantial does not mean that the employer must necessarily have reached the best conclusion. Employers are not obliged to search for the Holy Grail. It is sufficient if their conclusion is one which on a critical examination is found to have substance.

Higher authority, still, is to be found in the case of Archibald v Fyfe Council [2004] ALL ER page 303. At page 316 Baroness Hale of Richmond said

"The justification defence is special to disability discrimination. It recognises that there may be good reason for less favourable treatment or failing to make the necessary adjustments, but in each case this can only be shown if the reason for it is both material to the circumstances of the particular case and substantial. Furthermore, less favourable treatment cannot be justified if an employer has failed to comply with his duty to make adjustments unless it would have been justified even if he had complied (Section 5(5))."

It respectfully seems to me that those statements of the law in employment cases are equally applicable to the educational sections of the DDA with which this case is concerned.

The DDA provides, as regards reasonable adjustments that, in terms of Section 28B(8)

"If in a case following within sub-Section (1) -

a)      the responsible body is under a duty imposed by Section 28C in relation to the disabled person, but

b)      it fails without justification to comply with that duty

it's treatment of that person cannot be justified under sub-Section (7) unless that treatment would have been justified even if had complied with that duty."

Further, Section 28C(1)(b) provides, in part, that "the responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that ... ... (b) in relation to education and associated services, provided for, or offered to pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled".

The burden clearly lies upon the Defenders for as Section 28B(1)(b) provides that it is the responsible body (for the school) which requires to show that the treatment in question was justified.

In a case before the High Court in England on appeal from the relevant tribunal there (SENDIST) which hears the type of cases with which this present Court is concerned, the Deputy Judge in the case of Governing Body of PPC v DS, CAS and SENDIST [2005] EWHC 1036 (Admin) observed at paragraph 23 that the burden is on the responsible body to show that the treatment in question is justified.

In the case of R v Governing Body of OL Primary School (op cit) the Deputy Judge at paragraph 24 on appeal from a SENDIST decision held the appropriate way to approach a justification defence is to consider

"If there is no material and substantial reasons for the less favourable treatment (hurdle one), there is no need to consider the question of reasonable adjustments. If on the other hand there are material and substantial reasons then these may be trumped by the reasonable adjustments test (hurdle two). Both hurdles have to be cleared by the school if it was to succeed in its defence. The latter hurdle may often be the higher of the two."

I now turn to the question posed by the Pursuer's agents namely that there had been a detriment to the child in not adhering to the recommendation of the meeting of the Review Meeting of 28 November 2003 (5/1/8 of Process) that playground routines for the child were to be structured and not to include competitive games, where possible.

This was, according to Mr Nisbet, a breach by the Defenders of their duty to take a reasonable step/make reasonable adjustments. This was because of the child's difficulties with social skills. It was suggested by the Pursuer moreover that the Defenders ought to have adhered to the alternative such as allowing the child to play with the computer. The Defenders as I have narrated above say, in brief, that this would have been unrealistic and indeed by inference, of detriment to the child by not allowing him to grow his social skills by taking part in competitive games, provided the games were supervised and the child presented as being able to take part. Not to let him take part would set back, in fact, the child's education and social development.

Accordingly I did require to consider whether, as a matter of fact, the Defenders had failed in any duty in terms of Section 28C. I required therefor to examine closely the evidence of Caroline Martin, Mr Short, Maggie Fallon and the Head Teacher. I look, too, to the minute of the meeting of 28 November 2003. It is important first of all to note that the meeting was attended by, inter alia, the child's parents, the Head Teacher and Maggie Fallon but not by Caroline Martin.

What is referred to as the "recommendations" include: Youth strategy support to continue; playground routines to be structured and not include competitive games where possible; computer activity at lunch time to continue and be monitored by the auxiliary.

It seems to me that one requires to understand that minute against the understanding of those who were actually there and most importantly others who were not such as Caroline Martin. I have to consider the evidence of Maggie Fallon and the Head Teacher who had professional understanding of what the minute was setting out to achieve and could form an opinion as to what the recommendations were hoping to achieve for the child in his development.

I have reviewed the evidence of all of those persons and indeed the evidence of the father of the child. Caroline Martin's understanding was that the use of the computer was not a requirement. It was her understanding that the child, if suitably supported, could opt to go out into the playground. She said it would be for the staff present on any particular day to exercise a judgement as to when the child could go out into the playground. In her professional view, as a clinical psychologist with detailed knowledge of the child's difficulties, this approach was entirely appropriate. Indeed the goal was to integrate the child back into the playground to develop his social skills. The structure would be provided by either a teacher or a school support worker setting up a game. It was certainly not her understanding that the meeting of 28 November 2003 was resolving that the child should never be allowed to play football. Professionally as a child psychologist, she would not have been in favour of a strategy to keep the child in every lunch time whereby he might only play with the computer. In particular, as regards the incident of 1 March 2004, which had arisen out of a football game which she accepted would by its very nature be competitive, she said it would be best to leave it to the adult who was in charge of the child and to the adult supporting the game to assess at the relevant time whether it was appropriate for the child to take part. That decision would have to be taken against the background of the child's individual school plan which was to help him develop social skills. The adult in charge would have to judge how the child was likely to cope. Her opinion was that education does not finish at the classroom door, it involves going out into the playground as part of the child's overall education and as regards his social and emotional development.

Maggie Fallon, the worker with Youth Strategy, gave evidence that her organisation's strategy was, as regards this particular child, to address the difficulty which he had in social interaction with his peers. She said that the child liked playing football and it would be unfair to prevent him from playing football. Every day staff at the school and the staff of Youth Strategy have to exercise a judgement as to whether the child should play football. The playing of the computer was, in her words, an option not a requirement. Playing football would heighten the child's social interaction skills and the staff member on the day could judge whether the child was in a sufficiently good frame of mind to play. Even though there had been three incidents since the meeting of November 2003 leading to discipline problems with the child, including exclusions in January and February 2004, her view was that still allowing the child to play football was appropriate if again crucially he was in the correct state of mind. Miss Fallon said that the child could not develop his social skills if he was not allowed the opportunity so to do. There had, in her opinion on viewing the child regularly, been an improvement in the child's behaviour overall since November 2003, notwithstanding that there had been the intervening incidents that she had referred to. The school and herself as an officer of Youth Strategy had to give the child a chance to move on in his development of social skills. The recommendation of 28 November 2003 did not preclude competitive games. It was an option, subject always to the mood of the child and the game of football being supported by staff.

The Head Teacher gave evidence that whether the child was to play football must be a judgement call. It was not her understanding of the meeting of 28 November that the child was never to play football. The decision was to be based on the child's demeanour and behaviour. The Head Teacher recollected, although she accepted that it was nowhere minuted, that discussion had taken place with officers of Youth Strategy, and between the school and the parents, that the child might play football. She said that on a daily basis the school assessed risk for the child. That was why there was always an adult with him. As regards the incident of 1 March 2004 she personally had taken a decision to allow the child to play football. Whilst she accepted that the child had been upset by an earlier incident involving a football prior to lunch, she had met with him afterwards and he had seemed to calm down. She felt that if she had, in fact, not allowed the child to play football this might in fact have precipitated an outburst as the child might have thought he was being punished by not being allowed to play football.

Mr Short, Head of Schools, had knowledge of the child and his problematic behaviour. He accepted that normally decisions on any child would be minuted. However I do not take from his evidence that there was to be a rigid requirement as regards this. From his evidence I infer that this was rather to be taken as "best practice". There was nothing in his evidence which departed from the evidence of the other witnesses to whom I have referred namely the decisions as to what a child may do or on a daily basis were to be made by the professionals on the ground.

The child's father who had attended the meeting of 18 November 2003 had said in his evidence that he did understand that the recommendation was that the child would not be involved in competitive games such as football but would be playing with his computer at break time.

However I was drawn to the view that the evidence of Ms Martin, Miss Fallon and the Head Teacher were to be preferred to his evidence. The reason being that they had either day to day conduct with the child in the school situation either in the classroom or at play time or had the benefit of reports from others who did have such knowledge. It was on these detailed sets of knowledge that the witnesses had spoken to their views and opinions as to what was the best management of the child. I prefer their evidence that not playing football was to be seen as an option rather than as a strict requirement which was never to be departed from. I find the Defenders' witnesses on this point both credible and reliable. The Defenders' employees were involved in making a judgement call on a daily basis as to the child's behaviour which they could sometimes glean from his demeanour. The proper view of the meeting of 28 November and indeed of the actual practice afforded to this child thereafter up to and including the events of 1 March 2004, in my view, having looked at the witnesses' evidence, is that the staff were making judgements on a daily basis as to the child's behaviour and demeanour. They required to make a decision as to whether he ought to play football with other children subject always to the view that the game should always be supported by staff. Indeed I am entirely satisfied that they cannot be faulted in deciding that it was part of the child's requirement to develop social skills that the child ought to be allowed to play football. I am satisfied there is much good reason in the view that they came to, to allow the child to "move on". Their approach was flexible and informed by their intimate involvement with the child on a daily basis and based moreover on a view that was informed by expert opinion such as that from Caroline Martin. Notwithstanding that there had been difficulty between the meeting of November and the incident of 1 March they were entitled to form the view that his behaviour was improving. They were quite entitled, in my view, to allow the child to play football with his classmates. Moreover the decision to allow him to play football in particular on 1 March was made by an experienced Head Teacher who was aware not only of all the child's difficulties but had also reflected on his particular behaviour earlier that day. She had examined his demeanour after lunch, before deciding to allow him to play football. I accept her evidence that she was satisfied the child had calmed down. In my view, she was entitled to form that judgement and indeed, as it may be expressed, to make that "judgement call".

In my view, it cannot be said the Defenders have failed to make reasonable adjustments, as regards the child disability, as regards not adhering to the minute of the November meeting. They had provided for private computer time. However, mindful of his particular difficulties with social interaction they had also provided for, again based on their detailed and daily experience of the child, an opportunity for him to develop his social skills by introducing him to football, supported as he was in games with other children, by staff supervising the games.

In my view it cannot be said reasonably that the Defenders failed in their duty in terms of Section 28C. It seems to me that Mr Short's evidence that he would expect decisions to alter strategies to develop a child to be reduced to writing was, as I have indicated above, a statement of "best practice". In my view, however, it was entirely reasonable, in the context of dealing with a challenging child who had complex difficulties and needs, to allow to the Head Teacher and indeed to Youth Strategy the ability to make decisions on the child's management on a daily basis, as they must, without those being required to be committed to writing. To seek that, as the Pursuer contends, would be to seek the council of perfection which is in my view unrealistic in the school setting.

I have therefor been drawn to the conclusion that there has been no less favourable treatment afforded to the child by allowing flexibility by the Defenders' staff as to how the child was to play competitive games and in what circumstances. They have in my view shown flexibility in making adjustment on the matter, always in light of their judgement, based as they were always on reasons, as to the child's ability to "move on" to play football.

I find myself in agreement with the Deputy Judge in the case of R v Governing Body of OL Primary School (op cit). Even if there are material and substantial reasons for the less favourable treatment that these may be trumped by the reasonable adjustments test. That is what the Learned Judge refers to as the second hurdle. I am satisfied indeed for the reasons I have stated that even though it may seem to be the higher hurdle of the two to which the Deputy Judge has made reference, that in fact the Defenders have crossed it in this case.

I now turn to the question whether the Defenders have crossed the "first hurdle" namely whether the reasons were both "material" and "substantial" as regards their decision to exclude the child following upon the incident of 1 March 2004.

The Pursuer does not ultimately dispute that the behaviour of the child on 1 March 2004 was not the basis of a "substantial" reason allowing the Defenders to exclude the child. The Pursuer really submits that the decision was not "material" to the circumstances of a particular case. Notwithstanding what seemed to me to be a concession, ultimately made by Mr Nisbet, I must in my view be satisfied in fact that the reason was "substantial".

I accept and adopt as being highly persuasive the decision of the Court of Appeal in England in the case of Jones v The Post Office and the words which I have quoted above of Lady Justice Arden.

Accordingly I accept that material denotes the quality of the connection between what must exist, between on the one hand, the employers reasons for discriminating against the employee and on the other hand the circumstances of a particular case. In this particular case one substitutes local authority for the employer, and child for the employee.

I also adopt her Ladyship's definition of the word "substantial" namely that the reason which the employer (in our case the local authority) adopted as the ground for discrimination must carry real weight and thus must be of substance. However, the word "substantial" does not mean that the employer (local authority) must necessarily have reached the best conclusion. Employers (local authorities) are not obliged to search for the Holy Grail. It is sufficient if their conclusion is one, which on a critical examination, is found to have substance.

Accordingly I have to ask myself whether here, the Defenders, on whom the burden falls to prove the defence of justification have shown that the reason to exclude was both "material" and "substantial".

Dealing first of all with the word "material", the Pursuer argues that they were not. He argues that there was in place a blanket policy which prevented in fact the Head Teacher from making a decision based on the particular circumstances with which she was faced on 1 March 2004. That blanket policy can, he said, be found in Standard Circular 8. As a support for a construction of the DDA antipathetic to blanket policies Mr Nisbet had referred to the Code of Practice for Schools example 5.17A. Having read that example it does not seem to be particularly helpful or indeed particularly relevant to the present case. In that example, unlike in the present case, as I explain later, the policy may be found to be discriminatory if it is not based on the particular circumstances of the particular case. The example in the code deals with the refusal of a school to admit a child who has a particular disability, one who in fact is not toilet trained. The blanket policy is the requirement that all children be toilet trained. I can well understand that refusing admission to school for such a child discriminates as a refusal would not be made on the appropriate "comparator" namely a continent child. The circumstances of the present case are that a child was excluded for behaviour of a gross sort.

The apparent blanket policy would be discriminatory if the decision maker had no regard, before making the decision to exclude, to the circumstances namely the disability of the child (it will be recalled that I have held that the decision maker must be said to have had "knowledge of disability", as I have rejected the defence based on lack of knowledge) as set against a child who was not disabled and who assaulted a teacher or staff member.

It seems to me that it would be incumbent upon a decision maker to have regard to the child's disability before deciding to exclude even where the behaviour was of the type, identified in Standard Circular 8, in order that that decision be "material".

Mr Nisbet's reference to the case of Thomas White v Clitheroe Royal Grammar School I do not find particularly compelling. It is true that the District Judge in that case, although he was dealing with Part III of the DDA (dealing with services) rather than Part IV of the DDA as here, disapproved of a policy which prevented a child going on a school trip because the Head Master was not allowed to make a decision based on the merits. However, the facts of that case are different from the present case. In the Thomas White case the child was excluded from a school trip because he suffered from diabetes which could lead to an hypoglycaemic episode. It is significant to note that the Learned Deputy Judge in that case asked, in my view, the appropriate question whether the school could show the exclusion was justified at the time the decision was made by the reasonably held opinion that it was necessary in order not to endanger the health or safety of the child or any other person (paragraph 34 at page 10).

In my view it was because the school in the Thomas White case did not have regard to those health and safety factors at the time they made their decision that the Court in that case held that they had discriminated by operating a blanket policy. It was this blanket policy which the Deputy Judge deprecated at paragraph 47 where he said that the school developed and imposed a policy that discriminated against persons with disabilities until it was refined by the school governors. Indeed the Learned Judge was at pains to say that the DDA requires a reasonably held opinion that [a decision to exclude] was necessary in order not to endanger the health and safety of the disabled pupil or others (paragraph 46).

Each case of course turns on its own facts but I accept as persuasive the Learned Judge's opinion that justification requires a reasonably held opinion that it was necessary in order not to endanger the health or safety of the disabled person or others. This is in my view another way of not only saying that the reason requires to be "substantial" but also helps to focus on the question of "materiality" too. In the present case, to find the necessary connection the Defenders would need to show that there was a connection between the actions of the child and the decision to exclude which was not based only on a blanket policy but also was based on a consideration not only of the child's disabilities but on the needs to protect against injury to health or safety of others at the school.

I cannot see that that Thomas White case is authority for Mr Nisbet's secondary submission that the present Court is not permitted to enter into a theoretical exercise as to when the decision to exclude could have been justified, on the basis, that the Defenders, even though applying a blanket policy, might still have made a decision to exclude on the merits. In my view, the Thomas White case cannot bear that reading.

What the Court has to do is examine what the present Defenders did and whether there was a "material" connection between the behaviour of the child at the time they took the decision to exclude, looking at all the surrounding circumstances pertaining to the child's past behaviour, his behaviour on 1 March and the personal difficulties in social interaction which were within the knowledge of the Defenders.

This involves a consideration of the evidence of what was done by the Defenders on 1 March principally by the Head Teacher as also her consultation with Mr Short, the Head of School, to examine whether there was, as is contended, the following of a blanket policy without regard to the other circumstances.

I now consider the evidence of the Head Teacher and Mr Short as regards the basis of the decision to exclude the child on 1 March 2004.

Part of the Pursuer's submission was that it would not be appropriate for the decision maker, the Head Teacher, to consider earlier incidents involving the child. The Head Teacher in her evidence, which I accept, indicated that she had had regard to the previous exclusions of 6 January 2004 (of three days duration for threatening behaviour to staff) and the exclusion of 21 January 2004 (of seven days where the child had kicked and punched and spat a member of staff). She also gave evidence which I accepted that in considering discipline of any child she always had regard to the particular child's difficulties. However, she also had to balance that with the needs of others namely the staff of the school and other pupils. She had from her teaching experience of twenty eight years duration evolved an approach to dealing with children with difficult behaviour - a mixture of experience, instinct and judgement. She had particular knowledge of this particular child who had enrolled in her school in August 2003. She was aware that he showed challenging behaviour and behavioural difficulties. She was aware that the child suffered from ADHD and ODD and that he was awaiting assessment for Autism at the National Diagnostic Centre. As regards the incident of 1 March 2004, she was aware of the difficulty this child had encountered in the football game prior to lunch. However, she had spoken to the child after lunch and was satisfied that his demeanour was such that he had, to her eyes, (based on her experience) calmed down. In these circumstances she allowed him to take part in the game which was supported by her staff. Thereafter the incident took place. To repeat, and only briefly, this had involved four members of her staff, including herself, being confronted by violence or threat of violence by the child. She made the decision to exclude in the knowledge that the child had behaviour difficulties and difficulties with social situations. It was because of those difficulties that she decided to take advice from Mr Short. Whilst this step was taken, effectively as to the length of exclusion which would be appropriate to impose on this child, it was also to test her own views with a superior official. I accepted the Head Teacher that this child was, as she said, judged against the background of his specific needs, including his diagnosis of ADHD and ODD. However, she was drawn to the view that the incident of violence was such, and the degree of such was so great, that he was totally out of control. There was no other sanction commensurate with the need to protect staff & Ors, other than exclusion. This was especially so, said the Head Teacher, as this was the second incident involving aggression towards staff. She had thought to have the mother attend at school but the mother was unable to attend and thereafter she had arranged for the child's grandfather to attend. Even at that stage the child had hit out at the grandfather. She formed the view that it was not safe to keep the child within the school building. She had made the decision to exclude it must be said before speaking to the grandfather but in my view that is not a matter of significance.

She thereafter had spoken to her superior Mr Short, the Head of Schools for the Defenders.

Mr Short himself gave evidence that he had had the telephone conversation in the afternoon of 1 March with the Head Teacher. She had given him an account of the incident involving the child. The Head Teacher had required to speak to him given the rule - in Standard Circular 8 - as to length of time that a Head Teacher can exclude after previous exclusions had already taken place. He was satisfied on the description given to him, that the Head Teacher was right to exclude and was satisfied that twenty days was an appropriate sanction. His own view was that the figure of twenty days was necessary, given the prior exclusions, the child had had for similar conduct, to mark the gravity of the behaviour of 1 March but also, and indeed, very importantly, would allow time for the Defenders, as the Education Authority, to put together a meaningful future educational provision for the child. A lengthy exclusion allows the local authority to make plans.

In reviewing the evidence of the Head Teacher, and Mr Short, I am satisfied that the decision to exclude was material to the circumstances of the child. It was made against not only the knowledge that the Head Teacher had of the child which included almost daily contact with him but also in the light of her knowledge of his difficulties which she personally had and which had been given to her by other colleagues. The exclusion of 1 March must be seen against the previous incidents of exclusion for similar violent behaviour I would hold that it was reasonable for the Head Teacher to do this. The decision to exclude was made in the knowledge of the child's particular diagnosis of ADHD and ODD and had regard too to the policy which for violence against staff, required exclusion - Standard Circular 8. In my view the decision taken was a measured approach, albeit it had to be made relatively quickly given the Head Teacher's requirement to have regard to the needs of others including staff and other pupils. It is in my view reasonable for the Head Teacher to have regard to the safety and well-being of other school users. I am satisfied that the Pursuer's agent focussed too much on the policy which it was argued deprives the decision maker of the quality of "materiality". In my view the whole picture which surrounded the decision to exclude, the information which was within the contemplation of the Head Teacher, requires to be looked at.

In the circumstances which I have described above which were taken into account by the Head Teacher and checked against a superior, Mr Short, which included as I repeated the knowledge of the child's particular social difficulties, the decision she took was one which was, in the sense stated by L J Arden in the Jones case above, "material".

As regards "substantial" whilst it was not really suggested by the Pursuer that the behaviour leading to the exclusion would not amount to being a "substantial" reason I am satisfied that on the basis of the behaviour exhibited by the child on 1 March 2004 and the need to protect staff, other pupils and preserve good discipline, the decision was made for a "substantial" reason. The threshold is a low one (Heinz v Kendrick (op cit)) and it is not for this Court to substitute any views of its own for the Head Teacher provided that the decision was not made for a "minor" or "trivial" reason. The decision in Jones is clear authority for the view that the test is whether the response by the decision maker was one which was reasonable in a set of possible responses. It cannot in my view be said that the decision to exclude, and that for a duration of twenty days, was not one which was reasonable.

Accordingly I am satisfied that the Defenders have succeeded in establishing the justification defence afforded to them in terms of Section 28B(7) of the DDA.

In these circumstances the Pursuer has failed to show that the Defenders have discriminated against him in terms of the DDA, in terms of their alleged failure to make reasonable adjustments to the educational provision for the child and, in particular, I find that the justification defence is established as regards the particular incident of 1 March 2004 which led to the child's exclusion.

I now have to turn to other issues which arose in this case.

Whether the Defenders discriminated against the Pursuer by not preparing a Risk Assessment Plan?

The Pursuer seeks a declarator that the Defenders unlawfully discriminated against him in terms of Section 28A(2), Section 28B(2) and Section 28C(1) of the DDA by failing to draw up a formal risk assessment in relation to the Pursuer's activities and break time. The Pursuer also seeks an order for specific implement requiring the Defenders to conduct a formal risk assessment in relation to the Pursuer's activities at lunch time and break time, to record the results of said assessment in writing and to keep the contents under regular review, within such period as the Court thinks reasonable.

It is useful to be reminded of the terms of the DDA on which the Pursuer relies under this head.

Section 28(A)(2) provides:-

"It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body."

Section 28(B)(2) provides:-

"For the purposes of Section 28A, a responsible body also discriminates against a disabled pupil if -

(a)    it fails, to his detriment to comply with Section 28C; and

(b)   it cannot show that its failure to comply is justified."

Section 28C(1)(b) provides:-

"The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that -

... (b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled."

Regard must also be had to Section 28C(4) which provides:-

"In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under sub-Section (1), a responsible body must have regard to any relevant provisions of a Code of Practice under Section 53A."

The Pursuer's Submissions

Mr Nisbet referred to paragraph 4.23 of the Code of Practice for Schools. He submitted, as he submitted the Code makes clear, that "education and associated services" is a broad term that covers all aspect of school life. The illustrated list in that paragraph includes "breaks and lunchtimes". He submitted that it would have been a reasonable step in terms of the Defenders' duty in terms of Section 28C to carry out a formal risk assessment in relation to the Pursuer's lunch time activities in particular. This would be consistent with the general duty upon the Defenders in Chapter 11 of the Code as regards Health and Safety legislation and the relationship between that legislation and the DDA. The Code (paragraph 11.5) comments that Health and Safety legislation requires employers and persons concerned with premises to undertake risk assessments and to produce a health and safety policy. The risk assessment should set out any risks to staff & Ors including pupils and what control methods the employers will take to reduce those risks. Such measures to control risk may include (says the Code) appropriate training and guidance for staff.

Mr Nisbet acknowledged that the Defenders did have some system in place to look at risk assessment as regards to the child but submitted that the system was deficient. He referred to the summary nature of note taking at the meetings and the "failure" to clearly set out what were the recommendations of meetings. As an example, the recommendation that the child should use the computer at lunch time was not clearly understood by staff as a recommendation. That had it been fully understood as a recommendation, that would have avoided risk to the child at break and lunch times. The child's father, too, in his evidence appeared to be confused by this lack of precision. He had understood that the use of computers was in fact a formal recommendation in contra-distinction to a policy which might otherwise allow the playing of competitive games by the child. This confusion was exemplified by the evidence, it was said, of Caroline Martin, Maggie Fallon and the Head Teacher as to what the recommendation of the meeting of 28 November 2003 was as regards the requirement for structured playtimes and the need to avoid competitive games.

It was submitted that such confusion was not a good basis for managing and minimising risk. There ought to be a more formal structure to ensure a common understanding of recommendations. For, if staff were unclear about the nature and extent of risks in relation to the child's disability then he was placed at a substantial disadvantage. Moreover if there was confusion and disagreement about the measures to be taken to control and manage risk, the child was again placed at a "substantial disadvantage". Indeed these last two factors, the nature and extent of risk, and the steps to be taken to control and manage them had led to the child's detriment as they had led to incidents following which he had been subject to the disciplinary penalty of exclusion.

Mr Nisbet submitted that in evidence the Defenders' witnesses suggested that to have a formal risk assessment would not be flexible enough to deal with the child's changing needs but the Defenders had not set out in evidence why risk assessments could not be carried out at least as frequently as the multi-agency review meetings nor why the conclusions and recommendations of these review meetings could not be recorded in the form of a formal risk assessment.

The Defenders' Submissions

Counsel for the Defenders submitted that there were strategies in place to deal with the child's behaviour at break times and lunch times. Firstly, there was support in the form of Youth Strategy workers who were allocated to the child at the school and during break times. Secondly, that the strategies agreed at the review meetings were being implemented. Thirdly, that the Defenders did not require to institute a formal risk assessment because they had in place regular reviews by staff of the child, and the formal system of S.A.T, C.A.T and P.A.T meetings provided considerable scope to monitor the child's needs in detail. Those meetings could draw on the skills of a number of different professionals to respond to the child's needs and his behavioural difficulties. In essence a formal risk assessment was not required as there already existed a much more sophisticated process.

Reasoning

It is unarguable that by Sections 28A, 28B and 28C that the Defenders must not discriminate against a child, such as the Pursuer, by failing to provide educational and associated services that would prevent the child being discriminated against on the grounds of his disability.

I have already held that the Defenders had knowledge of his disability in the sense that they could reasonably be expected to know that the child was disabled.

I require, now, to determine whether he has been discriminated against by the lack, it is said, of a formal and accurate record keeping system whereby the particular difficulties of this child in social situations might have been better monitored and the disciplinary sanctions made less likely by adhering to the recommendation in the meeting of November 2003, that the child should play computer games and be involved in other structured supported activities and not be involved in competitive games as far as possible. I further have to determine whether a formal risk assessment plan for the future would ensure that he is not discriminated against.

All this requires a consideration of what was in place as regards the monitoring of this child as regards his difficulties and his challenging behaviour.

I have reviewed the evidence of the Defenders' witnesses which I have indicated in the previous section, dealing with the justification defence, as regards the duty to make "reasonable adjustments". I have preferred the evidence of the Defenders' witnesses, in distinction to that of the father of the child, that there was in fact no firm recommendation in place which was to be treated as inviolable that the child was not to take part in competitive games and was only to spend time with his computer at lunch time.

It seems to me that the steps taken by the Defenders as regards "reasonable adjustments" are apposite in this current section, too.

The Court has to look at all the factors put in place by the Defenders to see if, in essence, a risk assessment as regards this child was in place and whether the Court thereafter should find that provision unreasonable and then order a more formal system in the future by making an order of specific implement.

I have found in fact that there was in place a multi-layered approach to risk assessment. There was first of all the provision by the Defenders of a school which has a great deal of experience in dealing with children with behavioural difficulties, as evidenced by the evidence of the Head Teacher and Maggie Fallon which I accept. Further the Head Teacher and her staff have a great deal of experience in dealing with situations where children can be aggressive or confrontational. The Defenders provide through Youth Strategy, workers to develop the child's social skills. I accept the evidence of Caroline Martin and Maggie Fallon as regards the provision which was made and the aims of it, namely to cater for the child's behavioural difficulties and to seek to reduce them. In particular, the Head Teacher who is familiar with the child's difficulties saw him every day. She also attended regular review meetings of the child. The Defenders have in place I find as a matter of fact, which ultimately was not disputed, monthly review meetings attended by the Head Teacher and other experts such as Caroline Martin or another educational psychologist, a representative of the Youth Strategy and the child's parents which enabled the Defenders to monitor the child's behaviour and progress. These meetings allowed the Defenders to identify where he may require additional support. Youth Strategy, too, devised and implemented a strategy to deal with the child's behavioural issues. Review meetings had minutes which noted the areas of discussion and recommendations made. Over and above those regular personal contacts with the child and his parents and with experts as regards the child's development and his particular behavioural issues there was the more formal set of meetings.

There was a School Assessment Team (SAT) which involves the family and staff and, as required, an educational psychologist. These meetings look at problems including behavioural issues and seek to find a solution. Above that there is the Community Assessment Team (CAT) which involved more senior members of the Defenders staff, chaired by a senior social worker, who is in a sense, independent of the education officers. This meeting can and does involved medical experts and can access a wider range of resources to assist a child. I should say that the CAT has now been replaced by the Partnership Action Team (PAT) which provides a similar function. On all of this I accept the evidence of Mr Short that those formal bodies are there to support children such as the Pursuer who have difficulties and as regards this particular child, his behavioural difficulties.

I have therefor been drawn to the view that the individual consideration of this particular child's behaviour and difficulties on a daily basis by the Defenders' staff, supplemented by the formal meetings provide, amongst other benefits, a form of risk assessment for this child. Whilst I recognise that, in terms of the Code, the Defenders have to have regard to the issues of Health and Safety identified by Mr Nisbet, it seems to me that that section of the Code has more resonance with the provision of say clear and unobstructed corridors. The question of training of staff is something called for by the Code but I find that the holistic fashion in which the Defenders' staff, are gaining experience and expertise with this particular child, meets the needs of the child and provide practical training in meeting his needs for the staff. These personal contacts and meetings with the child in my view provide an ongoing risk assessment and management process. I have not found any deficiencies as regards staff training nor was, Mr Nisbet, in any sense actually identifying, in my view, any particular areas of lack of training, in his submissions.

It seems to me that a formal risk assessment is not necessary as regards this child given the multi-layered approach adopted by the Defenders. In one sense the call for a formal risk assessment system might be said to ask for the "council of perfection". That would ignore the systems to which I have referred which are in place. Indeed, it might perhaps involve the Court usurping the Defenders' role as the body best placed to determine how a particular child's needs and the risks he poses to himself & Ors by his challenging behaviour might be managed.

If I had been of the view that the steps taken by the Defenders were "unreasonable" - on a logical and systematic basis - I may have come to a different conclusion but I have not found them to be so in this particular case.

Accordingly I have come to the conclusion that the child has not been discriminated against in terms of Section 28(A), Section 28B and Section 28C by the lack of a formal risk assessment plan nor consequently am I of the opinion that I should order the Defenders to implement one.

Whether the Pursuer has been discriminated against by the alleged failure by the Defenders to draw up a School Health Care Plan?

The Pursuer seeks a declarator that the Defenders unlawfully discriminated against him in terms of Section 28A, Section 28B(2) and Section 28C(1) of the DDA by failing to draw up a school health care plan in relation to the Pursuer's medication, namely the administration of "Ritalin". The Pursuer also seeks an order for specific implement requiring the Defenders to draw up a school health care plan in relation to the Pursuer's medication within such period as the Court thinks reasonable.

I have already referred to the legislative provisions above upon which the Pursuer founds upon which in my view, here as in regards to the Risk Assessment Plan, places an obligation on the Defenders.

I accept that the Code of Practice generally places on bodies such as the Defenders an "anticipatory duty", to make "reasonable adjustments" (see paragraph 6.12 of the Code of Practice for Schools). It is the potential for a substantial disadvantage that should trigger a consideration of what reasonable steps might need to be taken. However, in the circumstances of the present case, I still have to consider that any duty which may exist as regards the administration of medication to the child is one which the present Defenders can fulfil themselves. In other words whether in a sense it is competent to find that they have not fulfilled any duty and to order them to fulfil such a duty in the future.

The Pursuer's Submissions

Mr Nisbet founded upon the evidence of Maggie Fallon of Youth Strategy that no information was available to them as to whether the medication should be administered before or after food, nor as to when the morning dose was received and how long thereafter the mid-day dose ought to be given. Mr Nisbet founded upon the indication given by Ms Fallon that should there be such requirements as to dosage and timings, then it would have been useful for staff to be aware of that. Staff then would be able and willing to comply with these requirements. Consequently, submitted Mr Nisbet, a school health care plan would be a reasonable step because it would enable such important information to be recorded and made available to staff who require to administer the medication. He submitted that the evidence of Mr Short, the Head of Schools, who indicated that it would be incompetent for the Defenders to open up a health care plan was tempered by his later evidence that a health care plan could be included within the child's individual or personal learning plans, although that course would be unusual.

The evidence of both Dr McKay and Dr Taylor indicated that the administration of medication to the child could be important as regards his behaviour both as regards dosage and timing. The child's behaviour, which is evidence of his disability, could be affected by the administration of the "Ritalin" and consequently the child was placed at a substantial disadvantage if there was no plan in force to guide the administration of the medicine.

Whilst the Head Teacher and Mr Short both indicated that they understood that a health school plan fell within the province of the Health Board, there was no indication that they, or anyone else within the authority, ever gave the matter any thought. Thus there was no "material" and "substantial" reason for the failure to provide a health school plan.

Mr Nisbet referred to the case of R v Governing Body of Plymouth High School for Girls [2004] EWHC 1933 (Admin) at paragraph 51 as authority for the proposition that it would have been reasonable for the Defenders to contact outside health agencies to discuss and implement the plan.

Moreover, paragraph 4.26 of the Code of Conduct states "In some areas of school life the duties of responsible bodies will overlap with other duties on other bodies: for example, providers of health services who have duties under Part III of the Act. Responsible bodies have to make sure that they fulfil their responsibilities regardless of duties on other bodies."

The Defenders' Submissions

Counsel submitted that whilst the Defenders had agreed to administer the child's medication the advice that Youth Strategy had received was to administer his medication at lunch time. At no time were the Defenders' advised to administer his medication before food or at any particular time. Accordingly there was no failure by the Defenders to administer the child's medication at the correct time and consequently no substantial disadvantage was experienced by the child in this respect.

However, Counsel's principal submission was that the responsibility for the production of a health care plan, which might of course cover when and at what times medicine was to be administered, was the responsibility of the Health Authority. She submitted this was the case under reference to Scottish Executive guidance "The Administration of Medicines in Schools". The Defenders are a local authority, not a health authority and they have no statutory powers in relation to the provision of a health care plan which is for the local Health Authority to consider. The Health Authority had not contacted the Defenders with a view to opening a health care plan. Consequently it would be incompetent for the Defenders to open a health care plan. Consequently it would be incompetent for the Defenders to be ordained to open a health care plan themselves

Reasoning

Both parties made reference to the document "The Administration of Medicines in Schools" (5/1/19 of Process). This is a document issued by the Scottish Executive in 2001. In the Introduction at paragraph 3 (page VI) it is acknowledged that the guidance has no force of law. It states that NHS boards are statutorily responsible for the medical treatment of pupils in schools and in carrying out this function they can enter into agreements with other parties. Later at paragraph 4 the document goes on to say that although meeting the medical needs of children in school is the statutory responsibility of NHS boards the day to day management of pupils requiring, for example, medication in schools may be undertaken by education authority staff on a voluntary basis. The document later at paragraph 38 (page 8) proposes joint agreements between NHS boards and Education Authorities covering a range of issues including the administration of medicines in schools.

Under the heading "Long Term Needs" at paragraph 42 (page 8) the document says "If a health care plan is needed, it is helpful for the appropriate school medical services to work with schools to draw up the plan, involving parents, other health professionals as necessary and the child should he/she have sufficient understanding".

Further at paragraph 44 (page IX) the document says "The need for a health care plan and the medical detail of such a plan should only be assessed by a health professional".

I have quoted this document in some detail to set the context in which the Defenders require to consider their "anticipatory" duty not to allow the child to suffer a "substantial disadvantage" as regards the administration of medicine.

I now examine the evidence of Mr Short, the Head of Schools, whose responsibilities is wider than the Head Teacher. Mr Short did concede to Mr Nisbet that a Record of Needs could contain a health care plan but he had never in his experience seen such in a Record of Needs. In answer to Mr Nisbet's question that schools have a leading role in setting up a health care plan, Mr Short answered that while schools may be the point of delivery of medicine, that the health care plan is the responsibility of the Health Board. This was based on his reading of the relevant law, the Scottish Executive guidance and his experience of the health service and the support they offer to young people. In answer to a question from the Court Mr Short deponed that his Education Authority have an agreement with the NHS Ayrshire and Arran framed within the national context which reflects that they, the Health Authority have a responsibility for the production of the Health Care Plan.

I draw from Mr Short's evidence and the document issued by the Scottish Executive to which I have referred and to which Mr Short referred to in his own evidence that the local authority may be the point of delivery of medicine but that the responsibility for instituting and preparing a health care plan is the responsibility of the appropriate NHS Trust. I would not hold that it was "incompetent" for the Defenders to prepare a health care plan rather that the onus to prepare one is upon the NHS Trust to which the Education Authority such as the Defenders, must react and indeed they must assist in planning and instituting such a plan once it is placed before them by the Health Authority. Consequently, when considering the "anticipatory" duty of the Defenders, I cannot hold that the extent of that duty obliges the local Education Authority such as the Defenders, to usurp the responsibility of the NHS Authorities.

Moreover, it seems to me that a proper reading of paragraph 4.26 of the Code of Practice for Schools does not mean that the Defenders have to take the lead in the provision of medical services but rather they must consult with other bodies on whom the primary duty lies. So, if for example the NHS Trust had identified particular medical treatment for the child and the Defenders had failed to act, be it by lack of consultation or implementation, I would have been content to hold that they had failed in the "anticipatory" duty and thus could be held to have discriminated against the child in terms of DDA. The primary duty to prepare the health school plan is, I am entirely satisfied, on the medical authorities not the Defenders and it cannot be said that the Defenders have discriminated against the child nor can it be said that they ought to be required by an order of specific implement to prepare a health school plan.

I should say for completeness that having looked at the case of R v Governing Body of Plymouth High School (op cit) I am not convinced that this is authority for the proposition that the Defenders ought to have instituted a health care plan. The context of that decision was different from that facing the present Defenders. The context in England and Wales and the particular guidance which the Defenders have in Scotland is quite different.

I may say, however, that now that the child has been diagnosed as suffering from Asperger's Syndrome the Defenders, if they have not already done so, might be well advised to consider any medical information which is imparted to them by the Health Authorities and to consider whether they ought to invite the Health Authority, if they have not already done so, to consider instituting a health care plan. If they were to do that that would, for the future, allow them to fulfil their duty to liaise with other bodies which is what I read that paragraph 4.26 of the Code anticipates.

Thus I am drawn to the view that the Pursuer as a matter of fact has not been discriminated against historically by any alleged failure of the Defenders to prepare a health school plan. They have administered medicine within the information which has been made available to them, principally from the parents. I cannot hold in terms of the information which was available to the Defenders both as regards the facts of the medicine to be administered and as regards a proper construction of the guidance to such as the Defenders, as to who is responsible for the production of a health school plan that they have discriminated, in any way, against the Pursuer. Consequently I am not persuaded that for the future, given that the burden lies upon the Health Authority, rather than the Education Authority, that there ought to be an order for specific implement ordaining the Defenders to institute and prepare a health school plan.

 

 

Remedies

As it is hoped it will be clear, I have not found that the Defenders have discriminated against the Pursuer in terms of Section 28A, Section 28B and Section 28C of the DDA. Accordingly, I shall not be granting the craves of the Pursuer to that extent. This is notwithstanding the finding that the Defenders have failed to establish that they had "lack of knowledge" of the Pursuer's disability, because of course I have found that the decision to exclude the child on 1 March 2004 was "justified" in terms of Section 28B(7). Because I have not found that the Defenders have discriminated against the Pursuer I shall not be ordaining the Defenders to take reasonable steps to fulfil their reasonable obligations in terms of Section 28C of the DDA, which is sought in terms of Crave 3. I have not found that as regards the Health School Plan nor the Risk Assessment Plan that the Defenders have discriminated against the Pursuer and therefor they are not to be ordained, by order of specific implement, to provide for either.

However, there is one other order that exercised both the Pursuer's solicitor and Counsel for the Defenders on which I do wish to comment. This is to be found in Crave 2 which requests the Court -

"To reduce the decision of the Defenders made on or around 1 March 2004 to exclude the Pursuer from [the school]."

Of course, having upheld the Defenders' defence of "justification" namely that the exclusion was made for "material" and "substantial" reason, the issue of actually "reducing" the decision does not now arise.

However, Counsel for the Defenders strongly submitted that even if the Court had come to the view that the Pursuer had been discriminated against it was not open to the Sheriff Court to "reduce" the decision of the Defenders as reduction is a remedy restricted to the Court of Session.

It seems to me, therefor, for some completeness of this Note, that I should make some comment as to the competency of the order sought by the Pursuer in the context of the DDA.

Counsel's primary submission was that the Sheriff Court has no authority to grant the remedy of reduction. She founded on the well-known case of Brown v Hamilton District Council 1983 SLT 397 which is authority for the proposition that reduction is a remedy for the Court of Session as the supervisory court of lower courts and tribunals. The speech of Lord Fraser of Tullybelton at page 414 confirms that -

"The supervisory jurisdiction over inferior courts and tribunals is invested exclusively in the Court of Session as Supreme Court"

Later at page 416 his Lordship reviewed the earlier decisions in Forbes v Underwood (1886) 13R 465 and in Aitchinson v Magistrates of Dunbar (1836) 14 S421 and the Sheriff Court (Scotland) Act 1907. His Lordship said that the decree of reduction is available only in the Court of Session. Moreover his Lordship quoted with approval the opinion of Lord Salveson in Dunbar & Co v Scottish County Investment Company 1920 1 SLT at page 140 "A general rule applicable to the construction of statutes is that there is not to be presumed without express words, an authority to deprive the Supreme Court of jurisdiction which it had previously exercised or to extend what was once the privative jurisdiction of the Supreme Court to the inferior Courts".

Mr Nisbet founded upon the remedies section of the DDA namely Section 28N which provides:-

"(1) A claim that a responsible body in Scotland -

(a)        has discriminated against a person in a way which is unlawful under this chapter or

(b)        is by virtue of Section 58 to be treated as having discriminated against a person in such a way

may be made the subject of civil proceedings in the same way as any other claim for the enforcement of a statutory duty

(2)                     Proceedings in Scotland may be brought only in a sheriff court

(3)                     The remedies available in such proceedings are those which are available in the Court of Session other than an award of damages."

Mr Nisbet submitted that sub-Section 3 must mean that Parliament had decided that reduction would be available in the context of the DDA in the Sheriff Court. A similar remedy was available to the equivalent body in England and Wales, SENDIST.

It seems to me that the Pursuer's submissions are to be preferred. I look at the actual words of sub-Section 3 "The remedies available in such proceedings are those available in the Court of Session other than damages".

It does not say that the remedies are those available in the Sheriff Court. By the selection of the words referred to I take it that Parliament must have intended that the Sheriff Court, in the context of the DDA, has power to reduce decisions not in conformity with the other sections in the DDA dealing with discrimination.

This is a United Kingdom statute and I am influenced in the construction I prefer by the equivalent power of reduction being available to the equivalent tribunal in England and Wales. It would be strange if Parliament had intended English and Welsh children to have more remedies if they were discriminated against than Scottish children.

I am not convinced that this construction does violence to the decision in Dunbar & Co (op cit). The DDA Section 28N does not deprive the Court of Session of its pre-eminent supervisory jurisdiction rather it extends a power of supervision into the Sheriff Court only in the context of the DDA. It is not, in my view, a general extension of the remedies normally available to the Sheriff in terms of the Sheriff Court (Scotland) Act 1907.

Consequently had I been minded to find for the Pursuer as regards the alleged discrimination, I would have held that I had power in terms of Section 28N to reduce the decision of the Defenders to exclude the child.

I have one further comment. In this case both the Defenders and the Pursuer have preliminary pleas going to the alleged lack of specification and relevancy of their opponent's case. These pleas-in-law were not the subject of a Rule 22 Note and those pleas had not previously been repelled in earlier interlocutors. Nothing was made of these pleas throughout the proof, with the exception of the objection to which I have referred to above by the Pursuer as regard the lack of specification as regards "justification" on which I have already ruled. In any event my view, standing the position adopted by respective parties, the preliminary pleas now fall to be dismissed.

Accordingly in considering the determination of this cause, the issue of the preliminary pleas with the other pleas-in-law for the respective parties, I repel the first, second, third and fourth pleas-in-law for the Pursuers and sustain the first, second, third and fifth pleas-in-law for the Defenders and repel the Defenders' fourth plea-in-law.

Expenses

Both parties were content to reserve their position on expenses until after the Court had made its substantive decision. I have accordingly fixed a Hearing on Expenses for this purpose.

 

NB This judgement is now under Appeal to the Sheriff Principal.