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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> DM v Fife Council [2016] ScotCS CSIH_17 (11 March 2016)
URL: http://www.bailii.org/scot/cases/ScotCS/2016/[2016]CSIH17.html
Cite as: 2016 GWD 11-215, [2016] ScotCS CSIH_17, 2017 SCLR 8, 2016 SLT 489, [2016] CSIH 17, 2016 SC 556

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 17

XA152/14

 

Lady Paton

Lord Bracadale

Lord McGhie

OPINION OF LADY PATON

in the appeal

by

DM

Pursuer and respondent;

against

FIFE COUNCIL

Defenders and appellants:

Pursuer and respondent:  McKendrick;  Drummond Miller (for Govan Law Centre, Glasgow)

Defenders and appellants:  J Scott QC, Stalker;  Balfour & Manson LLP

11 March 2016

Complaint of discrimination in education:  age and/or disability
[1]        The pursuer was born on 6 June 1995.  He has an autistic spectrum disorder and dyspraxia.  He is disabled within the meaning of section 6 of the Equality Act 2010.  The defenders, as the local education authority, were responsible for his school education.  In that context, section 29(3) of the Education (Additional Support for Learning) (Scotland) Act 2004 provides:

“In this Act … references to a child or young person for whose school education an education authority are responsible are to any child or young person being, or about to be, provided with school education –

(a) in a school under the management of the education authority, or

(b) in pursuance of arrangements made or entered into by the authority.”

 

[2]        Initially the pursuer attempted to undertake his secondary school education at a mainstream school under the management of the defenders, namely Waid Academy, Anstruther, Fife.  However his disability made that impossible for him.  In January 2010, he began attending Butterstone School (also known as “The New School”).  Butterstone is an independent private school catering for children and young persons with special educational needs.  After a dispute between the defenders and the pursuer and his family concerning a placing request (including an action in the sheriff court in which the pursuer and his family were successful), the defenders undertook responsibility for the payment of the pursuer’s school fees from 16 May 2011 onwards.  

[3]        In 2013, the pursuer was approaching his 18th birthday, 6 June 2013.  His mother Dr KM and the head teacher of Butterstone considered that he needed a further year at the school.  It was hoped that would enable him to transition to further education and/or employment.  Accordingly by letter dated 16 April 2013, Dr KM requested that the defenders continue funding the pursuer for 2013/14 (£43,410 for the year):  appendix pages 3-4, and 6; electronic bundle pages 161-2 and 164.  In particular she explained:

“I am writing to request a further year funding for my son … who is currently attending The New School Butterstone.

 

D is now doing well at school and working towards his qualifications this summer.  There are a number of courses he is not going to be able to finish in time for this academic session and he would benefit greatly from another year at school to complete these programmes.  The transition back into school was not easy for D and it has taken him considerable time to get him settled and working well.

 

I am enclosing a letter from the head teacher at The New School Butterstone which outlines how D would benefit from another year at school.  We feel that D missed a lot of education time through the difficulties he had at Waid and in making the transition back into education.  He is making excellent progress and is ambitious in his studies.  He needs another year at school to achieve a level that would allow him to go on to successful further study in an area that is of interest to him.  I hope you can support D in achieving his potential through another year at school …”

 

Dr KM enclosed a letter from the head teacher supporting her request.  The head teacher had formed her own view, and also had professional advice from Charles Gibb, educational psychologist (appeal print page 38; electronic bundle page 41).

[4]        By letter dated 23 May 2013, the defenders refused Dr KM’s request, advising that their statutory obligation to provide education for a child came to an end when the child reached the age of 18.  They explained that they had given careful consideration to the request and continued (appendix page 5;  electronic bundle page 163):

“… The original request to place D at The New School, and your successful appeal against the refusal of that request, were made under the Education (Additional Support for Learning) (Scotland) Act 2004, which makes provision for meeting the additional support needs of children and young persons for whose school education the education authority are responsible.  Since turning 16 D has been a young person, the definition of which within the Act is ‘a person … who has not attained the age of eighteen years’.  As D will be 18 on 6 June 2013 the Council will no longer be responsible for his school education.  Consequently I do not think that your request can be treated as a placing request under the Act.  The Council has no duty to continue to fund D’s placement at The New School.  We will therefore not fund his placement for an additional year as you request …”

 

[5]        The pursuer’s fees for 2012/13 had been paid in advance.  He was able to remain at Butterstone for the final three weeks of term until 28 June 2013. 

[6]        The pursuer then raised a summary application against the defenders in Kirkcaldy Sheriff Court, averring that their refusal of 23 May 2013 constituted unlawful discrimination against him on the basis of age and disability, contrary to the Equality Act 2010 as set out in the initial writ (appendix page 12 et seq;  electronic bundle page 170 et seq).  Reference was made to the 2010 Act, inter alia section 29(2) and (7) and sections 20‑21.  In particular it was averred that:

“13. The pursuer is at a substantial disadvantage compared with non-disabled students in relation to the practice of leaving school age at age 18, having completed 6 years of secondary education, and the defenders’ policy of not providing funding for schooling beyond that.  Because of his disability, he has not been able to attain within the normal time the level of academic, social and emotional preparation needed to progress to college, but it is reasonably expected that he can do so with a further year’s attendance at The New School.  Funding this additional year would therefore be a reasonable adjustment to the defenders’ usual provision and practice.

 

14. In failing to allow the pursuer to remain at The New School for a final academic year, in the face of all the professional advice available and notwithstanding the detrimental effects identified, the defenders have failed to make reasonable adjustments to avoid said substantial disadvantage to the pursuer.

 

15. There is nothing in law which prevents the defenders from continuing to fund the pursuer’s education at The New School for a further academic year.  Figures provided by the Council indicate that in each of the previous five years for which figures were available (September 2008 through September 2012 school censuses), no fewer than 8 and as many as 18 pupils aged over 18 were attending Fife mainstream schools.  Thus the defenders clearly have power to fund schooling beyond the age 18, indeed it is their normal practice to do so to the end of the academic year following the pupil’s 18th birthday.”

 

[7]        The initial writ craved the court to grant declarator that the defenders had unlawfully discriminated against the pursuer contrary to the Equality Act 2010;  to ordain the defenders to implement their duties in terms of the 2010 Act by providing funding to allow the pursuer to remain at the school (including implement ad interim);  and to grant decree against the defenders for payment to the pursuer of £8,000 with interest from 23 May 2013 for the anxiety, frustration and upset caused by the uncertainty regarding his future.

[8]        The pursuer’s maternal grandfather provided a loan for the school fees for 2013/14 (payable in advance of each term:  appendix pages 9 to 11;  electronic bundle pages 167 to 169).  The pursuer was accordingly able to return to Butterstone on 28 August 2013 when the school year 2013/14 began.

[9]        Meantime the pursuer’s summary application proceeded in the sheriff court.  The pleadings were adjusted at some stage so that the craves were for payment of an amount equivalent to the school fees for the year 2013/14 together with a sum for upset and distress. 

[10]      On 28 August 2013 (the day of the pursuer’s return to school) there was a hearing on interim orders before Sheriff McCulloch.  During submissions, the pursuer’s solicitor suggested that the defenders might consider awarding the pursuer an allowance or bursary in terms of section 49 of the Education (Scotland) Act 1980.  The sheriff requested the defenders to consider that matter.  The defenders undertook to do so.

[11]      Subsequently by letter to the pursuer dated 3 October 2013 (appendix pages 7-8, electronic bundle pages 165 to 166), the defenders refused to grant the pursuer funding by way of a bursary.  In their letter, they explained:

“As you are aware, your legal proceedings against Fife Council called in court on [28] August.  At that hearing, it was suggested by your solicitor that funding for your attendance at the New School for the session 2013 to 2014 could be provided under section 49(2) of the Education (Scotland) Act 1980.  The sheriff asked Fife Council to proceed on the basis that such a request had been made.

 

An allowance granted under section 49(2) would be a bursary granted by the council as Education Authority, which would be subject to the rules set out in the Education Authority Bursaries (Scotland) Regulations 2007/149.

 

I have given careful consideration to your request and to the reasons you have given for making it.  I have also taken account of the professional advice of our educational psychologist.  The education authority is given the discretion to grant or refuse such payments.  I have for the following reasons decided to refuse your request:

  1. A treats B unfavourably because of something arising in consequence of B’s disability, and
  2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim …

     

    19 Indirect discrimination
    (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

    (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –

  3. A applies, or would apply, it to persons with whom B does not share the characteristic,
  4. it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
  5. it puts, or would put, B at a disadvantage, and
  6. A cannot show it to be a proportionate means of achieving a legitimate aim.

    (3) The relevant protected characteristics are –

    age;

    disability …

     

    20 Duty to make adjustments

    (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply;  and for those purposes, a person on whom the duty is imposed is referred to as A.

    (2) The duty comprises the following three requirements.

    (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage …

    [The second and third requirements concern a “physical feature” and “an auxiliary aid”, neither being relevant in this case.]

     

    21 Failure to comply with duty

    (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

    (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person …

     

    Part 3 SERVICES AND PUBLIC FUNCTIONS

    28 Application of this Part

    (1) This Part does not apply to the protected characteristic of –

    1. age, so far as relating to persons who have not attained the age of 18 …

       

      29 Provision of services, etc

      (1) A person (a ‘service-provider’) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

      (2) A service-provider (A) must not, in providing the service, discriminate against a person (B) –

  7. as to the terms on which A provides the service to B;
  8. by terminating the provision of the service to B;
  9. by subjecting B to any other detriment …

     

    (6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.

     

    (7) A duty to make reasonable adjustments applies to –

  10. a service-provider (and see also section 55(7));
  11. a person who exercises a public function that is not the provision of a service to the public or a section of the public …

     

    31 Interpretation and exceptions

    … (3) A reference to the provision of a service includes a reference to the provision of a service in the exercise of a public function …

     

    Schedule 2 SERVICES AND PUBLIC FUNCTIONS:  REASONABLE ADJUSTMENTS

    2 The duty

    (1) A must comply with the first, second and third requirements.

    (2) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally.

    (3) Section 20 has effect as if, in subsection (4), for ‘to avoid the disadvantage’ there were substituted –

    ‘(a) to avoid the disadvantage, or

    (b) to adopt a reasonable alternative method of providing the service or exercising the function.’

    (4) In relation to a each requirement, the relevant matter is the provision of the service, or the exercise of the function, by A.

    (5) Being placed at a substantial disadvantage in relation to the exercise of a function means –

  12. if a benefit is or may be conferred in the exercise of the function, being placed at a substantial disadvantage in relation to the conferment of the benefit, or
  13. if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment …’”

     

    Submissions for the defenders and appellants
    [20]      Senior counsel for the defenders submitted that the appeal should be allowed, and the sheriff’s interlocutor of 29 September 2014 recalled simpliciter.

    [21]      At the age of 18, the pursuer ceased to be a child or young person for whom the defenders had a duty to provide education.  The pursuer’s action was not therefore an action seeking the provision of education:  it was a cash claim for compensation.  The pursuer had in fact received the education he wanted in 2013/14, although he had been obliged to pay for it.  The issue was:  should the defenders be obliged to reimburse him, or to pay him compensation.  It was the defenders’ position that what was in issue was the exercise of a public function, namely the defenders’ discretionary power to grant a bursary in terms of section 49(2) of the Education (Scotland) Act 1980 and Part 3 of the Equality Act 2010.

     

    1. The relevant refusal was found in the defenders’ letter of 3 October 2013.
    [22]      The letter of 23 May 2013 merely explained that the defenders’ responsibility for the pursuer’s school education came to an end on his 18th birthday.  The letter was not a decision about a bursary:  that came later, in the letter of 3 October 2013.  It could not be inferred from the letters that the former decision precluded the latter decision, or that the latter decision was pre-judged. 

     

    2.  Section 13: a claim based on age discrimination depended on demonstrating that because of age, the claimant had been treated less favourably than others;  it was therefore necessary to identify a relevant set of comparators
    [23]      Section 13 of the Equality Act 2010 concerned direct discrimination.  The letter of 23 May 2013 was a simple statement that the defenders had no duty to provide education once the pursuer was aged 18.  As for the letter of 3 October 2013 refusing to grant a bursary, that had been made for entirely non-discriminatory and justifiable reasons, as set out in the letter.  Also in order to demonstrate discrimination, the pursuer had to produce comparators, either actual or hypothetical, and then demonstrate that he had been treated less favourably than the comparators (Shamoon v Chief Constable of the RUC [2003] ICR 337, Lord Hope at paragraph 39, 52, 63;  Lord Hutton at paragraph 90;  Lord Scott at paragraph 107 to 112, 116;  Lord Rodger at paragraph 132, 137, 141).  In the present case, there was no evidence of comparators, i.e. other applicants for bursaries.  Any hypothetical comparator was in a materially different position.  No case of discrimination on the ground of age had been made out.

     

    3.  Section 15: a claim based on discrimination arising from disability depended on demonstrating that a person had been treated unfavourably because of something arising in consequence of that person’s disability
    [24]      It was accepted that the pursuer was disabled.  However he had not been refused a bursary “because” he was disabled.  In the context of direct discrimination (section 15), there was no finding to the effect that the bursary was refused “because of” something arising in consequence of the pursuer’s disability. 

     

    4. Section 19: a complaint of indirect discrimination depended on demonstrating a “provision, criterion or practice” that put disabled persons at a disadvantage
    [25]      The letter of 23 May 2013 did not contain a “provision, criterion or practice”, but rather a statement of law, namely that the defenders ceased to be responsible for the pursuer’s school education once he reached the age of 18.  The letter of 3 October 2013 was not a refusal of education, but a refusal of a bursary.  No provision, criterion or practice had been identified.  No relevant comparators had been identified.  There had been no evidence of indirect discrimination by means of a provision, criterion or practice contrary to section 19 of the Equality Act 2010.

     

    5. Sections 20 and 29(7):  a claim based on reasonable adjustments in terms of the “first requirement” required identification of the relevant “provision, criterion or practice” relating to “a relevant matter” (here the grant of a bursary) which placed the claimant at a substantial disadvantage in comparison with persons who were not disabled
    [26]      In order to determine whether there had been a failure to comply with section 20(3) of the 2010 Act, it was essential to identify the provision, criterion, or practice which was said to give rise to the disadvantage relied upon, and which represented the base position before any adjustments were made (Paulley v First Group plc [2015] 1 WLR 3384MM v Secretary of State for Work and Pensions [2014] 1 WLR 1716Noor v Foreign and Commonwealth Office [2011] ICR 695).  There had been no such identification in the present case.  There had been no evidence and no findings-in-fact on the matter.

     

    6. The sheriff having failed to make findings that would have entitled him to conclude that the defenders unlawfully discriminated against the pursuer, the appeal should be allowed
    [27]      Counsel criticised the sheriff’s findings-in-fact and findings‑in‑fact‑and‑law.  In the sheriff’s note, there was no mention of the Equality Act 2010, although that Act was supposed to be the basis of the decision.  The reference to the 2012 Regulations did not assist, as those regulations could not form the basis of the pursuer’s case.  The Education (Additional Support for Learning) (Scotland) Act 2004 did not impose any duty on an education authority to continue to provide fees.

    [28]      While the sheriff seemed to suggest that in May 2013, the defenders should ex proprio motu have thought of a way in which the pursuer could be funded for another year (for example, by a bursary) and should then have made the pursuer an offer, that was not an exercise which the 2010 Act demanded.  Paragraph [11] of the sheriff’s Discussion section (appeal print page 48, electronic bundle page 51) was the only attempt to find comparators, but that attempt was unsuccessful when tested by the statutory provisions.  The sheriff did not address the test contained in the 2010 Act, and in paragraph [15] of his Discussion section (appeal print, page 50;  electronic bundle page 53) did not define what sort of adjustment he was referring to.

     

    The sheriff’s interlocutor should be recalled
    [29]      There were no short-hand notes and no recording of the evidence led.  The findings‑in‑fact were not sufficient to enable the appeal court to recall the sheriff’s interlocutor and to substitute a fresh interlocutor (cf Shamoon).  In all the circumstances, the appeal should be allowed, and the sheriff’s interlocutor of 29 September 2014 recalled simpliciter.

     

    Submissions for the pursuer and respondent
    [30]      The appeal should be dismissed, and the sheriff’s interlocutor adhered to.  Alternatively, if the court considered that there was difficulty with any of the reasoning, the court could substitute its own findings‑in‑law.  Alternatively as this was a case in which it could not be said that no discrimination could ever be found, the case could be remitted back to the sheriff.

     

    1.  Overview
    [31]      Considerable respect should be given to the sheriff’s decision, as he had heard all the evidence (cf Shamoon v Chief Constable of the RUC [2003] 1 ICR 337 at paragraph [59]).  The sheriff’s findings‑in‑fact, findings‑in‑fact‑and‑law, and his note summarising the evidence, should be read together.  It was not correct to say that the sheriff did not refer to the relevant statutory provisions.  At page 44 of the appeal print (page 47 of the electronic bundle), he set out the statutes and cases.  The written submissions were contained in appendices to his decision.  Accordingly he had incorporated much of the statutory scheme and had set out the legal background.  His reasoning was provided in that context. 

    [32]      Counsel referred to the Supporting Children’s Learning Code of Practice (Revised edition 2010), a code published by the Scottish Government in relation to the 2004 Act.  The Code was important to set the context, particularly in relation to the transitioning of a pupil such as the pursuer to further education or employment (pages 113 to 119).

     

    2.  The May decision was the relevant one
    [33]      The pursuer’s position was that the May decision was the operative decision.  There required to be planning for the pursuer’s future:  nothing was done, and he was in effect abandoned.  The defenders had a number of statutory discretions which they could have exercised in May 2013.  Moreover they had duties to assist with his transitioning:  sheriff’s Discussion section paragraphs [11] [13] [14] and [17] (appeal print page 48 et seq;  electronic bundle page 51 et seq) referring inter alia to regulation 5(1) of The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.  The pursuer’s mother had made the request in April 2013.  Her request was a general one, for “funding”, and was not specifically for funding under the 2004 Act.  The defenders had refused the request, and had taken no further steps until they responded to Sheriff McCulloch’s request in August 2013.  The defenders could, and should, have reviewed the discretionary options available to them, including bursaries, in the context of appropriate steps being taken to transition the pursuer to his next stage.  The timing of their consideration of the option of a bursary was of the essence.

    [34]      The sheriff had not therefore erred in law in holding that the operative decision was in May 2013.  Section 149(1)(a) and (b) and (3)(a) of the Equality Act 2010 did not impose a duty:  but the section was nevertheless important, and set the context (namely the defenders must have due regard to the need to eliminate discrimination;  to advance equality of opportunity;  and to remove or minimise disadvantages suffered by persons such as the pursuer).  The importance of section 149 was underlined by The Equality Act 2010 (Specific Duties)(Scotland) Regulations 2012.  Also in terms of the Equality Act 2010 Code of Practice, paragraphs 7.20 and 7.21, the defenders “should anticipate the requirements of disabled people and the adjustments that may have to be made for them”.

    [35]      In all the circumstances, the sheriff was right to focus on the decision in May 2013, for the reasons he gave in paragraph [4] of his Discussion section (appeal print page 46;  electronic bundle page 49).  He had not erred in law.

    [36]      The relief to which the pursuer was entitled was declarator of unlawful discrimination, and damages.  The sheriff dealt with the damages for anxiety (£2,500).  As for the school fees, the pursuer had returned to school on 28 August 2013.   Removal of the pursuer from the school would have been detrimental to him:  paragraph [4] of the Discussion section (appeal print page 46;  electronic bundle page 49).  Accordingly the whole of the year’s fees were due in damages. 

     

    3.  Discrimination arising from disability:  section 15
    [37]      As explained in the Government’s Explanatory Notes to the bill in respect of section 15 of the 2010 Act (joint authorities tab 7.4;  electronic bundle page 322):

    “ this clause provides that it is discrimination to treat a disabled person unfavourably not because of the person’s disability itself but because of something arising from, or in consequence of, his or her disability, such as the need to take a period of disability-related absence …”

     

    The decision not to fund another year’s schooling was something unfavourable to the pursuer, and arose in consequence of the pursuer’s need to stay in school beyond the age of 18 because of the social and emotional challenges caused by autism.  The pursuer’s autism had prevented him from making the transition to other settings:  he needed another year in school.  The defenders were in breach of section 15(1), and had no defence in terms of section 15(2).  There was a possible defence in section 15(1)(b) (“a proportionate means of achieving a legitimate aim”, cf dicta of Lady Hale at paragraphs 17 to 18 of Aster Communities Ltd v Akerman-Livingstone [2015] 2 WLR 721), but such a defence had not been pled by the defenders.

    [38]      If the school’s reason for refusing a bursary had been that other opportunities for the pursuer had been identified and it would not be a good idea to fund him for another year at Butterstone, that could not be criticised:  but here the reason was simply age (18).  Legislation dealing with equality should be given a generous interpretation.

     

    4.  Indirect discrimination: section 19
    [39]      The provision, criterion or practice (PCP) which was discriminatory was “not to exercise a discretion to fund an individual beyond the age of 18”.  The proper interpretation of the letter of 23 May 2013 was that the defenders had made a decision that they would not exercise a discretion to fund a placement in relation to a pupil aged 18 or over.  The relevant group for comparison purposes would be the group of pupils in the UK applying for funding beyond the age of 18.  An apparently neutral PCP (not funding pupils beyond the age of 18) put a disabled person such as the pursuer at a disadvantage, as the transitioning period would be more difficult for him:  a longer transition was necessary:  cf the sheriff’s Discussion section paragraph [11] (appeal print page 48;  electronic bundle page 51).  The Commission for Equality supported the pursuer on this point:  written submissions paragraph 24 (tab 6.4;  electronic bundle page 224).

     

    5.  Reasonable adjustments: section 20
    [40]      Authorities such as MM and Paulley established that it was necessary to identify a provision, criterion or practice which put a particular individual at a disadvantage.  The PCP was the defenders’ decision that they would not exercise a discretion to fund a placement in relation to a pupil aged 18 or over.  The decision not to award a bursary (a benefit) resulted in the disadvantage and constituted discrimination.  The defenders had a duty in terms of section 20 to make reasonable adjustments for the pursuer.  In the present case, that duty comprised the first requirement.

    “The first requirement is a requirement, where a provision, criterion or practice of [the defenders] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage (section 20(3)).”

     

    The defenders’ decision to refuse funding was a relevant substantial disadvantage in terms of paragraph 2(5) of Schedule 2 of the 2010 Act (cf dicta of Elias LJ at paragraphs 70 to 77 of MM).  The pursuer was placed in a worse position than non-disabled pupils, because he needed more time when transitioning to the next stage than non-disabled pupils.  The steps which could have been taken included a “reasonable adjustment” of the policy, for example, the grant of a bursary.  It was accepted that there were financial aspects:  cf Answer 13 in the pleadings (appeal print page 13;  electronic bundle page 16).  The sheriff had taken those matters into account:  paragraphs [14] and [15] of his Discussion section (appeal print page 50;  electronic bundle page 53).  The adjustment which could have been made was straightforward, and, as the sheriff correctly held in paragraph [15] “it [could] not be argued that the adjustment was not reasonable”.

     

    6.  Age discrimination:  section 13
    [41]      By not funding a further year at Butterstone, the defenders had unlawfully discriminated against the pursuer on the basis of his ageThe comparator exercise in the present case was difficult, but there was no difficulty identifying the reason for the discrimination:  it was age.  In the absence of comparators, the court could look at other considerations supporting the inference of discrimination:  the very words of the letter of 23 May 2013 made it clear that age was the operative factor (cf Lord Rodger paragraph 142 of Shamoon).  There could be hypothetical comparators.  In this particular case, the situation was clear:  the pursuer was less favourably treated because he had reached the age of 18.  It was questionable whether comparators were needed. 

    [42]      It was accepted that there was a system of school education up to the age of 18, and that the defenders might have had a good defence based on “justification”:  but that defence had not been advanced.  There had been no pleadings and no evidence on that matter. 

    [43]      The appeal should be refused.

     

    Reply for the defenders and appellants
    [44]      The relevant decision was the refusal of a discretionary bursary.  That was not to be confused with the issue of education.  

    [45]      There were two procedural points.  First, this court could not make findings (cf Allardyce v Wallace 1956 SLT 225).  Secondly, the courts had disapproved of the practice of simply attaching submissions to a judgment, particularly as one could not know what the court had made of the submissions (Lothian Regional Council v A 1992 SLT 858 at page 863K).

    [46]      The sheriff had to apply the 2010 Act, dealing with each section.  The sheriff had failed to do so.

     

    Discussion
    [47]      In my opinion, this appeal illustrates the difficulties which may arise where two separate legislative schemes apply to one case.  The two schemes in this particular case are (a) the education legislation, and (b) the equality and non-discrimination legislation. 

    [48]      As the Commission for Equality and Human Rights (EHRC) point out in their written submissions, paragraph 10:

    “ … duties under the Equalities Acts may have the effect that local authority powers arising under other legislation ought to be exercised in a particular way in order to avoid unlawful discrimination”.

     

    That submission reflects section 149 of the Equality Act 2010, which provides:

    149  Public sector equality duty

    (1) A public authority must, in the exercise of its function, have due regard to the need to –

    1. eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
    2. advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
    3. foster good relations between persons who share a relevant protected characteristic and persons who do not share it …

       

      (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and person who do not share it involves having due regard, in particular, to the need to –

    4. remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
    5. take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
    6. encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low …

       

      (6) Compliance with the duties in this section may involve treating some persons more favourably than others …

       

      (7) The relevant protected characteristics are –

      age

      disability …”

       

      [49]      The public authority in the present case is the local education authority (the defenders):  Equality Act 2010 section 150 and Schedule 19 Part 3.  In terms of section 1 of the Education (Scotland) Act 1980, the defenders have a duty to “secure that there is made for their area adequate and efficient provision of school education and further education”.  I accept that their duty to provide school education normally ceases when a pupil reaches the age of 18 (see paragraphs [15] to [16] above).  However in terms of section 1(2A) of the 1980 Act, the education authority also has a “power to provide … further education for their area …”.  Section 49 is an example:  it provides that:

      “ (1) … an education authority shall have power to grant … and make payments in pursuance of, bursaries, scholarships or other allowances to persons over school age attending courses of full-time or part-time education …” 

       

      Another example of a power to fund pupils beyond the age of 18 is section 20 of the Local Government in Scotland Act 2003 (financial assistance to advance wellbeing):  see the written submissions for the EHRC paragraph 10.

      [50]      Against that background, I accept that Dr KM’s request for “a further year funding” for 2013/14 for her son, who would by then be over the age of 18, would prima facie appear to be a request for the provision of school education for someone no longer a child or young person, and would appear to invite a justifiable refusal.  Put another way, the education legislation contains such a clear cut-off point at the age of 18 that no education authority could be prima facie criticised for refusing to provide school education for someone who had attained the age of 18. 

      [51]      However in the pursuer’s case, two additional factors had to be taken into account, namely (i) the pursuer’s admitted disability; and (ii) the equality and non‑discrimination legislative scheme, including the Equality Act 2010, the Equality Directive 2000/78/EC of 27 November 2000, the Equality Act 2010 (Specific Duties)(Scotland) Regulations 2012, and the Equality Act 2010 Code of Practice.  

      [52]      As set out in Dr KM’s letter of 16 April 2013 enclosing a letter from the head teacher of Butterstone, the pursuer’s disability meant that he needed more time than other pupils to develop socially, emotionally and academically such that he could make a realistic attempt to transition to the next stage.  The sheriff’s findings-in-fact cover this matter in full:  see findings‑in‑fact 2‑6, 9, 12-15, 24-25, 31;  and see too the Discussion section, paragraph [11].  The letter was widely‑framed:  it was not restricted to a request under the Education (Additional Support for Learning)(Scotland) Act 2004;  nor was it restricted to “the provision of education”, as the letter used phrases such as “ … a further year funding …I hope you can support D in achieving his potential through another year at school …”.

      [53]      As a result, I consider that Dr KM’s request in her letter of 16 April 2013 was more complex than it might at first appear.  The defenders (who were well aware of the pursuer’s disabilities and “how his disabilities affect his life”:  finding‑in‑fact 4) required to give that request careful thought.

      [54]      In particular, the defenders had to consider the fact that their duty in normal circumstances was to provide school education for children and young persons up to the age of 18.  But in addition they had to consider that the pursuer had a disability qualifying in terms of section 6 of the Equality Act 2010 (an autistic spectrum disorder and dyspraxia).  They had to take into account the statutory powers which they could exercise, and the terms of Dr KM’s widely-framed letter.  Further, the defenders had to take into account the terms of section 149 of the Equality Act 2010; sections 12(5), (6) and 13 of the Education (Additional Support for Learning)(Scotland) Act 2004; and The Supporting Children’s Learning Code of Practice (Revised edition 2010) paragraphs 27 et seq (school to post‑school transition):  see paragraph [17] above.  Note too the sheriff’s Discussion section paragraphs [11] [13] and [14] referring inter alia to regulation 5(1) of The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.

      [55]      In these circumstances I consider that the sheriff, who heard and considered all the evidence and the submissions (both written and oral), was entitled to reach certain conclusions on questions of mixed fact and law, as follows.

      [56]      In my opinion the sheriff was entitled to conclude as a matter of mixed fact and law that the defenders had exercised, expressly or impliedly, one of their discretionary powers in order to fund the pursuer’s school education for the three weeks following upon his 18th birthday (finding‑in‑fact‑and‑law 6).  I have reached that view because, when considering the pursuer’s case in May 2013, the defenders knew that they were funding his school attendance for a period of three weeks even although he was aged over 18.  They did not claim a refund from the pursuer or his family.  The sheriff was entitled to proceed on the basis that they used one of their discretionary powers (which he identified as section 49 of the 1980 Act) in order to permit the pursuer to complete his final year although he had become 18 during that year. 

      [57]      I consider that the sheriff was also entitled to find in fact and law that:

      “10. In making the decision of 23rd May 2013 the defenders relied upon a policy [sc provision], criterion or practice namely that they would not fund the education of persons over the age of 18 other than those who attained the age of 18 in their final year of schooling [emphasis added]”

       

      [58]      That being so, the defenders were aware not only that there was a clear cut‑off point at the age of 18, but also that they had certain powers and discretions which could be exercised to assist a pupil who had reached the age of 18.  The defenders were aware that they could, if they so chose, offer assistance to the pursuer (a) in relation to completing the school year during which he became 18;  and (b) in relation to a further year at Butterstone which, according to evidence accepted by the sheriff, was hoped would give the pursuer sufficient time both to learn from the courses offered by the school and also to develop socially, emotionally, and academically, thus reaching the desired stage which non-disabled pupils reached earlier and more easily. 

      [59]      In those circumstances, I consider that the sheriff was entitled to find that there had been indirect discrimination by the defenders’ letter of 23 May 2013 in terms of section 19 of the 2010 Act in respect of the protected characteristic of disability.  The sheriff was entitled to take the view that the proper interpretation of the letter was that the defenders had made a decision that they would not advise the pursuer and his family of the various options and strategies available and invite further discussion or applications for grants or bursaries, thus failing to alert the pursuer and his family to ways of facilitating the pursuer’s development and learning processes so that he, as a disabled person, could endeavour to achieve the appropriate social, emotional and academic standards which would render his attendance at college – or indeed any other school-leaving goal – more feasible.  The defenders’ response, applying an apparently straightforward and neutral provision, criterion or practice (namely “that they would not fund the education of persons over the age of 18 other than those who attained the age of 18 in their final year of schooling”:  sheriff’s finding‑in‑fact‑and‑law 10) put the pursuer as a disabled person at a substantial and particular disadvantage compared with a hypothetical group of non‑disabled persons aged 18 or over throughout the UK who had not been held back by a disability such as that suffered by the pursuer and who were engaged in the process of transitioning – unhampered by that disability – to further education and/or employment.  This was particularly so bearing in mind the context, which included the defenders’ duties to take steps during the period of the pursuer’s transitioning (sections 12(5), (6) and 13 of the Education (Additional Support for Learning) (Scotland) Act 2004;  the Supporting Children’s Learning Code of Practice (Revised edition 2010) paragraphs 27 et seq) – duties which the defenders appear to have failed satisfactorily to fulfil (sheriff’s finding‑in‑fact [23] and Discussion section paragraphs [2], [5]-[6], [11], [13]-14]).  As Lady Hale explained in Homer v Chief Constable of West Yorkshire Police [2012] ICR 704 paragraph 14, the wording of section 19:

      “... [was] not intended to make it more difficult establish indirect discrimination:  quite the reverse … Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question …”

       

      (cf the written submissions of the EHRC, paragraph 23).

      [60]      The defenders could reasonably have taken steps to assist the pursuer.  The defenders had a duty in terms of section 20 to make “reasonable adjustments” for the pursuer:  section 20(3) and 29(2) and (7) of the 2010 Act.  A “reasonable adjustment” to their provision, criterion, or practice of non‑funding beyond the age of 18 (unless to complete a final year) could have included advising Dr KM of the various options available (for example, a bursary in terms of section 49;  or financial assistance to advance wellbeing in terms of section 20 of the Local Government in Scotland Act 2003).  Obviously the success of an additional year could not be guaranteed;  also there would be financial considerations.  But the sheriff took those matters into account (Discussion section paragraphs [13], [14] and [15];  see too Noor v Foreign & Commonwealth Office [2011] ICR 695 paragraph 33).  The sheriff was in my view entitled, on the basis of the evidence and submissions before him, to find in fact and law that “The defenders’ treatment of the pursuer was not a proportionate means of achieving a legitimate aim” – in other words, that there was no justification for their treatment.  Thus the sheriff was entitled to conclude that the defenders had failed to comply with their duty to make reasonable adjustments (section 21 of the 2010 Act).

      [61]      The breach of sections 19 and 20 could not, in my opinion, be cured by the subsequent treatment in August to October 2013 of the summary application as a request for a bursary in terms of section 49, resulting in a refusal of a bursary on apparently valid and non‑discriminatory grounds (cf the sheriff’s view at paragraph [4] of the Discussion section).  What was required was action as described in paragraphs [53] to [60] above to have been taken timeously following upon Dr KM’s letter of 16 April 2013.   

      [62]      I accept that the sheriff may not have expressed his reasoning and conclusions in precisely the same manner as is set out above.  But there is in my view a clear sufficiency in his findings‑in‑fact, findings‑in‑fact‑and‑law, and note, to support his conclusion that the defenders unlawfully discriminated against the pursuer in May 2013.

      [63]      As I am persuaded that there was, in May 2013, unlawful indirect discrimination against the pursuer arising from his disability contrary to section 19 of the 2010 Act, with a failure to make reasonable adjustments contrary to section 20 of the 2010 Act, it is unnecessary to examine in detail any other provisions in the equality and non‑discrimination legislative scheme.  I would add obiter that I was not persuaded that there was any direct discrimination arising from disability (section 15), or that there was any discrimination (direct or indirect) based solely on age (sections 5, 13, 19), although age was the neutral criterion involved in the indirect discrimination arising from disability in terms of section 19 (cf paragraph [59] above).  I do not therefore agree with the sheriff’s findings‑in‑fact‑and‑law 9 and 15.  However that does not affect the conclusion that there was unlawful discrimination by the response letter dated 23 May 2013 – a conclusion which, in my view, the sheriff was entitled to reach, as discussed above.

      [64]      The only remaining issues are (i) the remedies available;  and (ii) quantification of any monetary award.  I note that no specific arguments were advanced in this appeal in respect of either of those matters.

      [65]      In terms of section 119(3) of the 2010 Act:

      “The sheriff has power to make any order which could be made by the Court of Session –

  1. in proceedings for reparation;
  2. on a petition for judicial review.”

 

[66]      Against that background, I consider that the sheriff was entitled to grant an award representing damages or compensation for the breach of sections 19 and 20 of the 2010 Act.  My initial view was that the sheriff was entitled to make the awards he did.  However I have been persuaded by the reasoning set out in the opinions of Lord Bracadale and Lord McGhie that it was not open to the sheriff to make an award for the school fees payable for the year 2013/14, for the reasons they give.  Accordingly that part of his interlocutor falls to be recalled.  The sheriff was entitled to make an award of damages in respect of solatium reflecting the anxiety and upset suffered by the pursuer as a result of the uncertainty caused by the refusal of funding in May 2013.  On the information before me, I am unable to criticise the amount awarded.

 

Decision
[67]      For the reasons given above, I propose that the appeal be allowed to the extent that the sheriff’s interlocutor of 29 September 2014 is recalled and in place thereof the following interlocutor granted:  

“THEREFORE:  sustains the pursuer’s pleas-in-law numbers 1, 4 and 6;  declares that the defenders unlawfully discriminated against the pursuer;  grants decree against the defenders in the sum of TWO THOUSAND FIVE HUNDRED POUNDS (£2,500) sterling with interest at the rate of 8 per centum per annum from date of decree until payment;  repels all other pleas-in-law;  finds the defenders liable to the pursuer in the expenses of the action and allows accounts thereof to be submitted to the Auditor of Court to tax and to report;  certifies the cause as suitable for the employment of junior counsel.” 

 

The question of expenses should be continued. 


EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 17

XA152/14

 

Lady Paton

Lord Bracadale

Lord McGhie

OPINION OF LORD BRACADALE

in the appeal

by

DM

Pursuer and respondent;

against

FIFE COUNCIL

Defenders and appellants:

Pursuer and respondent:  McKendrick;  Drummond Miller (for Govan Law Centre, Glasgow)

Defenders and appellants:  J Scott QC, Stalker;  Balfour & Manson LLP

11 March 2016

[68]      I am grateful to your Ladyship in the chair for setting out the circumstances, the relevant statutory provisions and the submissions of the parties.  I have come to the view that while the sheriff was entitled to find that the local authority did discriminate against the pursuer, the claim in respect of the payment of the fees for the seventh year at the New School must fail.  In this respect I agree with the opinion of Lord McGhie which I had the benefit of reading in draft.  I have come to this view for reasons which I shall endeavour to explain below. 

[69]      The letter sent by Dr KM dated 16 April 2013 was clearly a request for funding for a further year for the pursuer to attend the New School;  the reason given was the difficulty with transition and this was supported by a letter from the head of the school.  Your Ladyship has set out the terms of the response of the local authority dated 23 May 2013 refusing further funding after the pursuer reached the age of 18 years.  The sheriff found that it was this decision that gave rise to discrimination and I agree that he was entitled to do so. 

[70]      At the heart of this case is the transition of the pursuer from school to further education or training.  In that respect, the local authority had certain duties, particularly under the Education (Additional Support for Learning) (Scotland) Act 2004 section 12(5), (6) and (13).  On the evidence before him the sheriff was satisfied that the local authority had failed properly to fulfil these duties.  On the evidence before him he was no doubt entitled to come to that conclusion.  But that in itself would not give rise to a cause for an action by the pursuer against the local authority for damages in respect of discrimination.  Section 149 of the Equality Act 2010 (the 2010 Act) provides for the public sector equality duty under which a public authority in the exercise of its functions must have due regard to eliminate discrimination;  advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and foster good relations between persons who share a relevant protected characteristic and persons who do not share it.  In terms of subsection (3) having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard to the need to do various things, including taking certain steps.  Section 149 falls within Part 11 of the 2010 Act which is headed “Advancement of equality” and within Chapter 1 of that Part which is headed “Public sector equality duty”.  It is, however, important to note that section 156, which is within the same chapter, provides that “a failure in respect of a performance of a duty imposed by or under this chapter does not confer a cause of action at private law”.  In order for an individual to raise an action for damages in respect of discrimination by a public authority against that individual it would be necessary to rely on one or more of the specific sections of the 2010 Act dealing with discrimination.

[71]      Before the sheriff the pursuer made a claim for discrimination based on a number of sections of the 2010 Act.  The judgment of the sheriff is difficult to follow, not the least because he has failed to relate the heads of claim to the relevant statutory provisions.  The reader is driven to infer from the language used under which section or sections the sheriff found discrimination to have been proved. 

[72]      The language used by the sheriff makes it plain that he based his decision in relation to the claim for payment of the fees for a further year at the New School on the provisions of the 2010 Act relating to the duty to make reasonable adjustments (findings-in-fact-and-law 10 and 11).  It is clear that the reference to "policy, criterion or practice" in finding-in-fact-and-law 10 is simply an error and what the sheriff intended was a reference to “provision, criterion or practice” (PCP) which phrase features in sections 19 and 20 of the 2010 Act.  In finding-in-fact-and-law 11 the sheriff found that it would have been a reasonable adjustment for the local authority to make payment of the pursuer’s fees for the academic year 2013‑2014.  It is necessary therefore to examine the provisions in relation to the duty to make reasonable adjustments.

[73]      The local authority is a person who exercises a public function in terms of section 29 of the 2010 Act.  The local authority in the exercise of its public function must not do anything that constitutes discrimination (section 29 (6)).  In addition, in terms of subsection (7) the local authority has a duty to make reasonable adjustments. 

[74]      The duty to make reasonable adjustments is provided in sections 20, 21 and 22 and, in relation to a person, such as the local authority, exercising a public function, schedule 2.  The duty comprises three requirements (s 20(2)).  For present purposes only the first requirement of the duty to make reasonable adjustments set out in section 20(3) is relevant:  that is a requirement, where a PCP puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.  Failure to comply with the first requirement is a failure to comply with a duty to make reasonable adjustments (s 21(1)).  Failure to comply with that duty in relation to a person constitutes discrimination (s 21(2)).

[75]      In relation to persons exercising a public function, where a duty to make reasonable adjustments is imposed, schedule 2 applies.  This has the effect of modifying the provisions in relation to the making of reasonable adjustments in the case of a person exercising a public function.  In terms of paragraph 2 of schedule 2 the reference in section 20(3) to a “disabled person” is to “disabled persons generally”.  This means that the duty is owed to disabled persons generally, or perhaps to a particular class of disabled persons;  it is an anticipatory duty which means that persons exercising public functions must anticipate the needs of disabled people and make appropriate reasonable adjustments (MM v Secretary of State for Work and Pensions [2014] 1 WLR 1716; Elias LJ paras 36-45; Paulley v First Group plc [2015] 1 WLR 3384).

[76]      Accordingly, it is necessary to identify what would be a reasonable adjustment in respect of disabled persons generally or a class of disabled persons before exploring whether in a particular case in terms of section 21(2) there has been a failure to comply in relation to an individual.  Underhill LJ put it this way in Paulley at para 63: 

The starting point is the principle, emphasised by both parties in their submissions before us, that, as Lord Dyson MR says in Finnigan [[2014] 1 WLR 445], at para 32:

“the duty to make reasonable adjustments is anticipatory. It is owed to disabled persons at large in advance of an individual disabled person coming within the purview of the public authority exercising the relevant function.”

It follows, as he goes on to say, at para 36, that:

“It is important…to keep in mind the distinction between (anticipatory) changes to a [PCP] which are applicable to a category or sub-category of disabled persons and changes which are applied to individual disabled persons on an ad hoc basis. The duty to adjust a [PCP] is to be judged by reference to the former, and not the latter.”

Thus the questions (a) whether a given PCP puts disabled persons generally at a substantial disadvantage in comparison with non-disabled persons and (b) whether, if so, the defendant has failed to take reasonable steps to avoid that disadvantage are to be decided by reference to the disadvantage suffered by the relevant class of disabled person rather than by the individual claimant. The question whether, if such a breach is established, it constitutes a breach “in relation to” the claimant - see section 21(2) of the Act – is separate and comes later.”

[77]      The sheriff identifies the PCP at finding-in-fact-and-law 10 as being "that [the local authority] would not fund the education of persons over the age of 18 other than those who had attained the age of 18 in their final year of schooling".  In the discussion section at paragraph 8 he describes it as " in no circumstances would they fund a pupil's attendance at school for a 7th year or for that matter allow them to attend for a 7th year”. 

[78]      The relevant matter for the purposes of the first requirement in section 20(3) in the present case is the transition from school to further education, training or work.  The question must then arise as to what would be a reasonable adjustment in respect of disabled persons in general or the appropriate class of disabled persons.  In the case of the pursuer it would be necessary to identify the class of disabled persons to which he belonged and in respect of whom a reasonable adjustment would be the payment of fees for a seventh year.  If such a class could be identified and the pursuer came within that class then the question would arise as to whether the local authority had discriminated against the pursuer by failing to comply with that duty in relation to him (s 21 (2)). 

[79]      The sheriff does not appear to have approached the application of the duty to make reasonable adjustments in this way.  He has concentrated entirely on the treatment of the pursuer by the local authority.  While I can see that a reasonable adjustment in relation to a class of disabled persons who were approaching the age of 18 and were having difficulty with transition might be to advise the disabled persons in that class of the availability of discretionary bursaries to fund a seventh year, or to treat a request for funding as an application for a discretionary bursary, I do not think that it can be the case that a reasonable adjustment for such a class of disabled persons would be to pay the fees for a further year of school education in every case.  I agree with the conclusion of Lord McGhie that on the material before us it is not possible to identify a class of disabled persons in respect of whom it could be said that payment of fees by way of bursary would be a reasonable adjustment and that it is highly unlikely that payment of such fees would ever be capable of applying as a reasonable adjustment in a generic way. 

[80]      A further reason why I consider that it was not open to the sheriff to find in favour of the pursuer in respect of the claim for payment of the fees under sections 19 and 20 of the 2010 Act relates to the approach which the local authority should have taken in their response on 23 May 2013.  Had the local authority treated the letter dated 16 April from Dr KM as an application for a bursary then it might have decided to pay the fees or it might not.  It is instructive to note in this regard what the sheriff himself says in relation to this in paragraph 13 of his discussion: 

"At the time the defenders were asked to fund an additional year they made no proper assessment to conclude whether or not it would be a reasonable adjustment vis a vis any alternatives. Such assessment may well have enabled them to reach a justifiable conclusion that it was not. They would have been able to consider, as they did subsequently, all the evidence for and against the request."

As it happened, later, when, encouraged by the sheriff at a preliminary stage in the action, the local authority did treat the letter from Dr KM as an application for a bursary it exercised its discretion by refusing to pay the fees and giving reasons;  that was recognised by the sheriff not to be discriminatory.  This reinforces my view that the extent of the discrimination against the pursuer did not go beyond the failure to advise him of the availability of a bursary or treating the letter as an application for a bursary. 

[81]      I agree that the claims of discrimination under sections 13 and 15 were not made out.  I am satisfied therefore that in this case there was a breach of the duty to make reasonable adjustments and that the local authority failed to comply with that duty in relation to the pursuer;  in the light of that the award in respect of the claim based on compensation for injured feelings should be affirmed.  But the breach of duty would not give rise to a requirement to pay the fees for a further year at the New School and I would allow the appeal to the extent of quashing the liability in respect of the payment of fees for an additional year at the New School. 


EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 17

XA152/14

 

Lady Paton

Lord Bracadale

Lord McGhie

OPINION OF LORD McGHIE

in the appeal

by

DM

Pursuer and Respondent;

against

FIFE COUNCIL

Defenders and Appellants:

Pursuer and respondent:  McKendrick;  Drummond Miller (for Govan Law Centre, Glasgow)

Defenders and appellants:  J Scott QC, Stalker;  Balfour & Manson LLP

11 March 2016

[82]      I gratefully adopt Lady Paton’s careful exposition of the background to this appeal and her helpful citation of relevant statutory provisions.  I have found the inter-related provisions of the 2010 Act difficult to analyse and difficult to apply to the circumstances of the present case.  But I am satisfied that the sheriff’s decision cannot stand and that, as agreed by counsel, we should make our own decision on the material available rather than return it to the sheriff for further procedure.  I would allow the appeal in part as I consider that the award based on a finding of liability to pay the school fees cannot be supported.

[83]      It is impossible to approach the matter without a feeling of sympathy for the pursuer and an expression of admiration for his family who have not only campaigned on his behalf but provided substantial support.  There is no doubt that it was an entirely sensible and appropriate decision that he should have a further year at the New School to allow him to make the most of his school years.  However, it must be said that I have found nothing in the wide range of duties explored before us to suggest that he had a positive right to be funded by the defenders after he was eighteen.  If the defenders had dealt with everything properly in May 2013, there would, in my view, have been no basis for a challenge to their ultimate decision that he should not receive a bursary.

[84]      The pleadings and submissions in this case covered so much material that the sheriff can perhaps be forgiven for failing to identify the particular statutory grounds on which he based his decision.  However, although I shall have to deal with the specifics of his approach to the concept of reasonable adjustment in the context of the defender’s duties under the 2010 Act, I see no purpose to be served by more general analysis of his findings or reasoning.  The problem is that while the sheriff was careful to set out the statutory basis for several of his preliminary findings in fact and law he did not do so in respect of any of the critical findings relating to discrimination.  An underlying difficulty is that, on the face of it, he appears to have based his thinking to a considerable extent on his view of the defender’s failure to perform all the duties incumbent on them in terms of the Education Acts.  Section 149 of the 2010 Act does impose a duty on the defenders which encompasses such duties but section 156 expressly provides that this is “not a cause of action at private law”.  It does not appear that any reference was made to that section in proceedings before the sheriff.

[85]      The exercise of teasing out whether and to what extent duties which are not a cause of action at private law may be founded on in an action at private law is plainly one of potential difficulty.  There is no indication that the sheriff attempted this exercise.  Indeed, counsel did not attempt the exercise.  For the pursuer, it was accepted that the case was based on the provisions of the 2010 Act.  Mr McKendrick said that the rest was simply relevant background.  How it might come to be relevant was left an open question.

[86]      I have come to accept that there is sufficient material in the findings in fact and in the clear inferences to be drawn from the undisputed time-table of events and written material to allow us to deal with the legal issues.  The pursuer’s case was based on the duties imposed on the defenders by section 29 of the 2010 Act and the detail of the duties to be found in sections 13, 15, 19 and 20: see submissions at p 54 of appeal print.  

[87]      The sheriff does not expressly find a breach of any specific section.  The critical findings in fact and law [8] to [17] are essentially just findings in fact.  At [7] of his discussion he says simply that “the claim of age discrimination succeeds”.  This may be taken to imply a breach of section 13.  As will be seen, I have come to accept that there was an entitlement to compensation for “discrimination” and that the award the sheriff made in that respect cannot be challenged.  It is therefore unnecessary to deal in any detail with the sheriff’s findings of discrimination.  But it may be said that I consider that his characterisation of the defenders’ argument on age discrimination as being “naïve” (discussion [6]) puts things the wrong way round.  The defenders’ defence was the sophisticated one that it was necessary to look beyond the simple fact of age to see that the real reason for the decision was that there was no statutory obligation to fund schooling for people over 18.  At a simplistic level that can, of course, be viewed as discrimination based on age.  But I accept that on a proper analysis, there was no breach of section 13 because the comparison being made by the defenders was not between young people of 17 and those of 18 but between people in respect of whom they had a duty to provide education and those in respect of whom they had no such duty.  

[88]      The defenders’ decision in May 2013 might well have been justified under section 13(2) because a decision based on a statutory scheme can normally be taken to reflect a proportionate means of achieving a legitimate aim.  But, in any event, I am satisfied that the defenders were entitled to rely on section 23.  Where a statutory duty applied to one group and not another, this was a material difference between the circumstances of the two different age groups.  I do not consider the sheriff’s conclusion on this to have been well founded.

[89]      We heard no persuasive reason to counter Mrs Scott’s reliance on section 23, but it might be added that if the defenders are wrong, it is not clear what this section adds.  The start point under section 13 is to establish that the discrimination is “because” of the protected characteristic.  Cases like Shamoon v Chief Constable [2003] ICR 499 make it clear that it is not enough to point to a protected characteristic and show a comparison of outcome.  It is necessary to show that the different outcome is because of that characteristic.  In many cases there would be no need for section 23 because that causal link will be missing.  There may be circumstances where comparison is unnecessary – as discussed by Lord Rodger, for example, in Shamoon at [142].  But on any view, section 23 makes it clear that a simplistic approach to section 13 is insufficient.  The mere difference of age, superficially the reason for the discrimination, is not sufficient for the purposes of the Act.

[90]      The sheriff makes no attempt to base his decision on indirect discrimination but it is appropriate to say a few words about section 15.  This provides that it is discrimination against a disabled person, B, to treat B “unfavourably”.  This does not require comparison with another person.  I think it is right to say that this provision requires us to consider the October decision because the May decision was not based on disability.  Be that as it may, there must, on any view, be some causal link.  The sheriff has made no appropriate finding.  The pursuer required further education as a consequence of his disability.  He did not get it.  Even if this can properly be described as “unfavourable treatment” in the context of section 15 (which I doubt), it is hard to see how it could be said that the defenders treated the pursuer unfavourably “as a consequence” of the disability.  The defenders decided that the pursuer was not entitled to a continuation of his education because he was outwith the age limit for the statutory scheme.  That was not a consequence of his disability in any way but a consequence of his age and their application of the statutory scheme.  Although the apparent need for a bursary or grant was a consequence of disability, refusal of a grant can hardly be so described. 

[91]      In any event, the substantive decision was the decision to make an award of £43,410 in respect of the annual school fees.  The sheriff’s comments and reasoning make it clear that this was based on his view of the provisions of section 20.  The decision proceeded on the basis that making a payment of that amount would have been a “reasonable adjustment” for the purposes of the Act.  That is explicit in the finding in fact and law [11].  At [9] of the discussion the sheriff says:  “Two issues arise from the operation of the PCP, firstly, does it put the pursuer at a substantial disadvantage compared with non-disabled students and is the payment of his fees for an additional year reasonable to avoid that disadvantage?”  He goes on to answer these questions in the affirmative.   

[92]      Before looking further at the provisions dealing with reasonable adjustment it is necessary to identify the PCP which requires adjustment.  The defenders’ letter of 23 May 2013 is properly to be read as evidencing application of a criterion or practice of dealing with requests for funding for education after the age of eighteen as falling to be refused because the statutory obligation ceased at that age.  As explained by Lady Paton at paragraphs [52] to [57], the sheriff was entitled to make the finding of fact and law [10]: “In making the decision of 23rd May 2013 the defenders relied upon a policy (sic) criterion or practice namely that they would not fund education of persons over the age of 18 etc”.  His discussion at [8] shows that he had in mind the statutory provision and the word “policy” can be taken as a simple typing error.  The letter from Dr M was not a request to provide education.  It was explicitly a request to provide funding.  The defenders appear to have applied a practice or criterion of relying on an age cut off without requiring special consideration of the circumstances of the disabled.  Some categories of disabled person would plainly be at a substantial disadvantage within the meaning of section 20(3) compared with people whose education was unimpeded by disability.  There is no justification for interfering with the sheriff’s findings that there was a PCP applying a simple cut-off.  As a broad approach, such a cut off was entirely understandable but I am satisfied that it plainly required some adjustment to deal with young people in special circumstances.

[93]      To determine the nature and scope of the statutory duty to make reasonable adjustment it is necessary to have regard to a number of linked provisions.  The duty itself is found in Part 3 of the Act which deals with services and public functions.  Section 29(1) provides a duty not to discriminate in the provision of services.  This subsection is not easy to apply literally as it makes no reference to protected characteristics but section 29(6) provides three separate duties in the exercise of a public function: duties not to discriminate, not to harass and not to victimise.  The duty not to discriminate plainly relies on the examples of “discrimination “defined in earlier sections.  Section 29(7) seems to create an entirely separate type of duty.  It simply provides that “a duty to make reasonable adjustments applies to a service provider”.  But that duty to make reasonable adjustments is converted into a duty not to discriminate by section 21(2).  The scope or content of the duty appears in section 20 – the terms of which are set out fully by Lady Paton at [19].

[94]      For present purposes the relevant provision is section 20(3) which applies where a PCP puts a disabled person at a substantial disadvantage.  “Substantial” is defined by section 212 to mean “more than minor or trivial”.  The duty under section 20(3) is to take such steps as it is reasonable to have to take to avoid the disadvantage.  However, it was not disputed that the scope of that duty was limited or further defined by the provisions of Schedule 2 - also set out by Lady Paton at [19].  The important provision is paragraph 2(2) which is in the following terms: “(2) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally”.  I am satisfied that the effect of this provision is that the adjustment is to be one capable of applying to disabled persons as a class and not to be specific to one individual.  

[95]      The nature of the duties as anticipatory and to be assessed by reference to a class of disabled person rather than an individual pursuer was described by Lewison LJ in Paulley v First Group plc [2015] 1 WLR 583, para [31], as “common ground”.  I did not understand it to be disputed by Mr McKendrick that this meant that any adjustment to a PCP required to be generic.  The critical point is that the reasonable adjustment required by the statute is to be one capable of general application to an identifiable general class.  It is an adjustment to a PCP which applies to meet the needs of the disabled.  In practice it will rarely be possible to decide whether an adjustment is reasonable without having regard to specific classes of disability.  The category of being disabled would normally be too wide to allow a single type of adjustment.  It seems to me that to determine whether an adjustment is reasonable it will normally be necessary to identify a class or group of disabled persons into which the pursuer would fall and then consider whether a proposed adjustment is reasonable in relation to that group.  The reasonableness or otherwise of a proposed adjustment may well depend on the size of the group.

[96]      It is unnecessary at this stage to deal with the matter in terms of specific onus although it normally makes sense to require the pursuer to identify some possible adjustment of the PCP which allows it to be applied in a way which meets the needs of the class of the class of disabled people of whom the pursuer is one.  It might be for the defenders to show why that was not reasonable.  The problem in the present case is that the sheriff has made no attempt to approach the matter generically.   

[97]      It would be possible, no doubt, to start by looking at disabled young persons generally and testing the reasonableness of a proposed adjustment by reference to that group.  A PCP of applying a funding cut-off at 18 plainly required some adjustment to allow for consideration of the needs of the disabled.  I would have no difficulty in holding that when dealing with a disabled young person it would have been a reasonable adjustment to their practice to ensure that he was advised of the possibility of applying for a bursary.  A more direct adjustment of policy when considering an application for funding by a person over 18 suffering from a disability would be to ensure that when any application was made by such person, however worded, it was treated as applying for any form of financial assistance which the defenders were empowered to provide.  The defenders failed to apply any such adjustment when considering the pursuer’s application. 

[98]      But advising of the possibility of obtaining a bursary or considering whether to exercise a power to grant a bursary is not the same as making an actual payment.  If a reasonable adjustment is one which is to be applied generally and not one tied to the circumstances of a specific applicant, it is plain that varying or adjusting the normal practice by agreeing to pay the fees of every disabled person who wanted to continue schooling after 18 would go beyond what we could determine to be reasonable – at least in absence of any persuasive evidence to that effect.  Put in positive terms, it might readily be seen to be a reasonable adjustment for the defenders to say: “Our PCP is to provide no funding for school education after a child reaches 18 but if that child’s schooling has been impeded in any way by a disability we shall give careful consideration to his circumstances to decide whether he should receive funding by way of a bursary.”  But it is not so obvious that the policy required adjustment to the effect that if a child’s schooling had been impeded to any extent by disability, payment of a bursary to allow existing schooling to continue beyond 18 would be made.

[99]      An attempt to find a class of disabled persons in respect of whom it could be said that payment of fees by way of bursary would be reasonable is far from straightforward.  I am not satisfied that it can be done on the material before us.  We might have been slow to interfere with any finding of the sheriff attempting to define a generic approach but there is no basis for us to attempt that exercise ourselves and consideration of the matter points to a conclusion that it is highly unlikely that payment of full fees would ever be capable of applying as a reasonable adjustment in a generic way.  Defining the class in terms of persons whose disabilities have interfered to any extent with the progress of their schooling presents no great difficulty if the reasonable adjustment required is simply to give consideration to the granting of a bursary in all such cases.  But to narrow the class further so as to make it essential to provide funding is not an exercise I feel competent to embark upon at this stage.  I am driven to conclude that this goes beyond what could be regarded as a reasonable adjustment.

[100]    The sheriff’s reasons for his application of a reasonable adjustment were set out at length.  It is clear that they involved a close examination of the position of the pursuer.  He did recognise that if the defenders had made a proper assessment – by which he apparently had in mind the duties imposed by Regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 - the defenders might well have concluded that funding for an extra year at the New School was not appropriate.  He found they made no assessment.  But insofar as he was relying on these Regulations, it is plain that the pursuer’s case cannot rest on them.  The need for assessment can be accepted as a reasonable adjustment but that does not advance the case for adjustment by way of payment of a bursary. 

[101]    The sheriff made reference to the decision of the EAT in Noor v Foreign and Colonial Office [2011] ICR 695.  That was an employment case.  The duty expressly relied on was that imposed by section 4A(1) of the Disability Discrimination Act 1995.  That section does not use the term “reasonable adjustment”.  It creates an obligation on employers to “take such steps as it is reasonable, in all the circumstances of the case, for him to have to take” to prevent a particular PCP having a disadvantage for the “person concerned”.  It seems plain that this requires an adjustment adapted to the needs of the individual employee – or potential employee.  The discussion in the case in terms of “reasonable adjustment” may have been intended as a shorthand reference to the above provisions of section 4A(1) or may have been a reference to some statutory provision, not referred to in the judgement.  At para [20] the Tribunal quoted section 18B(1) of the Act which does refer to circumstances where there is a duty to make reasonable adjustments but it is not clear from the decision whether the Tribunal regarded that as broadly equivalent to the duty under section 4A(1).  It is sufficient to say that the general approach of the Tribunal in Noor may be misleading if relied on as a guide to the proper application of the duty to make reasonable adjustments in the context of the 2010 Act.

[102]    That said, there is no reason to doubt the specific proposition which the sheriff took from the case which was that it was not necessary to show that an adjustment would be completely effective for it to be reasonable.  It might be added that it seems clear that reasonableness requires to be assessed in light of the time when the adjustment is applied and not with the benefit of hind-sight.  It appears that the sheriff had been invited to consider how the extra year at New School had turned out.  He properly disregarded that.  But following his examination of the specific circumstances of the pursuer, the sheriff repeated his conclusion: “In the circumstances it cannot be argued that the adjustment was not reasonable.”: [15].  As we have seen, the adjustment in question was payment of the pursuer’s school fees for the additional year : [9].  It is plain from this that the sheriff  treated the requirement to make reasonable adjustment to a PCP as something to be applied at a personal or ad hoc level.  The reasoning is clearly indicative of a misunderstanding of the nature of reasonable adjustments in the context. 

[103]    As indicated above, I am persuaded that we can properly proceed on the basis that the defenders failed to make any adjustment to their practice of ending funding at 18.  I see no reason to challenge the finding that an award of £2500 was appropriate for the uncertainty and anxiety which this must have caused.  But I am satisfied that the award of £45,910 cannot be supported.  It turns on the proposition that the reasonable adjustment required under section 20 was one tailored to the specific circumstances of the pursuer.  This leaves out of account the provisions of Schedule 2.  I see no basis upon which we could make a finding that payment of the full amount of the pursuer’s fees for an additional year was a reasonable adjustment which might have been applied to any identified group of disabled so as to allow it to be described as a generic adjustment or one applying to the disabled generally.

[104]    In the result, I would allow the appeal in so far as necessary to quash the first finding of liability in the sum of £45,910 is concerned and substitute a liability in the sum of £2500 with interest.

 

 

 

 


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