Public Law

The parents of a ten-year-old disabled boy in a mainstream school have succeeded in a disability discrimination claim against their local education authority, in what has been described as a landmark ruling.

They had asked the local authority to provide additional support to their son to allow him to participate in guitar lessons after school. This included assistance in using the toilet and other personal care, as well as assistance in moving and holding the guitar, and turning the sheet music. The authority refused, as it believed that there was sufficient support already in place for the pupil’s needs in terms of the legislation.

The parents’ legal case was based on the Equality Act 2010, which requires schools to make reasonable adjustments to ensure that disabled pupils are not placed at a “substantial disadvantage” because of their disability when compared to pupils who are not disabled. The purpose of the duty is to enable disabled pupils to have access to an education as close as is reasonably possible to the education normally offered to pupils at large.

The additional support already provided by the council in this case enabled the boy to participate fully in the school curriculum, as well as some extra-curricular activities such as a trip to the theatre.

However, when his parents took their case to the Additional Support Needs Tribunal for Scotland, the Tribunal found that the council was wrong to have refused the support requested to allow the pupil to participate in the after-school tuition. The Tribunal said that the council had unlawfully discriminated against the pupil because of his disability. In not being provided with support to attend guitar lessons along with his peers, the Tribunal thought that the pupil was “substantially disadvantaged”. His health and safety was compromised and his additional support needs were not met.

Following the decision, the council has said that it will reflect on the Tribunal’s findings and consider its position, but it seems highly likely that the support sought by the parents will be provided.

The decision may have wider repercussions (and significant cost implications) for all local authorities across Scotland, as it confirms that a school’s duty to make reasonable adjustments is not extinguished when lessons finish at the end of the day. Schools should consider how to ensure that disabled pupils can be involved in every aspect of school life and, in making decisions about reasonable adjustments for disabled pupils, should consult their legal advisers and refer to appropriate guidance issued by the Equality and Human Rights Commission.

Gemma McKinlay

Associate at Brodies LLP
Gemma is a senior solicitor in Brodies market-leading Public Law & Regulatory team in. She advises on a range of public law and commercial issues.  Her specific areas of practice expertise include powers and duties of local and central government, statutory interpretation, equality and human rights, data protection and freedom of information laws.
Gemma McKinlay