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Education Law Unit Equality and Human Rights Case Service Report 2008/2009


Contents Introduction

3

Sector Analysis

4

Highlights Statistics & Analysis

5-7 8-10

Accessibility

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Issues of Continuing Concern

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Next Steps

12

Conclusion

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Alternative formats are available on request. Please contact us on 0141 445 1955 or equality@edlaw.org.uk to enquire.

Govan Law Centre is an independent community controlled organisation which exists to tackle unmet legal needs within the Greater Govan area and other areas of social disadvantage as determined by the Govan Law Centre Trust. It is a Scottish charity SC030193. Its legal work is undertaken by the independent legal practice of Dailly & Co. Solicitors.

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Introduction T

he Equality and Human Rights Case service was set up in May 2008 as an addition to the legal advice and representation case service already provided by Govan Law Centre’s Education Law Unit.

The Education Law Unit is the leading legal case work agency in Scotland with regard to the rights of school pupils and parents. It works in partnership with schools, education authorities, parent groups and voluntary organisations to promote and protect the rights of schoolchildren in Scotland.

However, the main focus of work has traditionally been on the rights of pupils with disabilities and/or additional support needs. The Education Law Unit already has a national profile and reach and is well placed to expand its work to encompass the rights afforded by all equality and human rights legislation for school pupils in Scotland.

The new case service aims to provide an effective representation and advice service to school pupils and/or their parents who are experiencing or are at risk of discrimination at school or nursery within Scotland. The equality mandates applicable to education are race, disability, gender, sexual orientation and religious belief.

Case law in discrimination and human rights in education has been sparse in Scotland - perhaps leading to complacency among education providers.

Govan Law Centre's new case service aims to tackle this by providing free legal representation in Court and Tribunals throughout Scotland.

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Sector Analysis “

We welcome and celebrate diversity. Learners, parents, and staff are treated with respect and in a fair and just manner. In our school, culture and language, disability, gender, race, religion, sexual orientation and additional support needs do not become barriers to participation and achievement.

HMIE – How good is Our School Equality and Fairness Quality Indicator illustration

S

chools in Scotland are remarkably diverse institutions. To the extent that they do mirror Scottish society as a whole, the indications are that while this diversity is welcomed and celebrated, there are also a number of challenges which must be addressed. As of September 2008 there were 681,573 school pupils in publicly funded schools in Scotland.1 In addition there were 30,981 pupils in independent schools.2

Girls were attaining higher than boys across all categories.5 Of all pupils excluded in Scotland 79% were male. 65% of LGBT schoolchildren have experienced homophobic bullying in school4 with 97% hearing homophobic phrases often.2 Where pupils have been assessed or declared as having a disability, the rate of exclusion was considerably higher than amongst other pupils.6

In 2007/08 932 children received their education at home or hospital due to prolonged ill health. A further 225 received education at home due to “other special circumstances”, with 756 children educated at home through parental choice.3

There are many inconsistencies in education authorities approaches to dealing with matters of Race Equality. This was found to be the case in a national study in 2004/2005. (Minority Ethnic Pupils’ experiences of School in Scotland MEPESS Ceres/Seed)

There were 38,716 pupils with Additional Support Needs, 70% of whom were male. 12,391 pupils were recorded as being disabled.

The Macpherson Report from the Stephen Lawrence Enquiry defined Racist incidents as “any incident that is perceived to be racist by the victim or any other person ”

147 different languages were reported as being the main language spoken at home and 19,001 pupils were identified as having English as an additional language.1

However, there is evidence from our casework that this definition has not yet been adopted consistently across all 32 authorities despite Scottish Government guidance.

Pupils in Scotland 2008 – Scottish Government national statistics publication Independent School Census (revised October 2008) 3 Children Educated Out-with School and Pupil Projections 2008. 4 Educatiom for all – The experiences of young gay people in Britain’s schools – Stonewall Report 5 SQA Attainment and school leaver qualifications In Scotland 2007/2008 – Scottish Government statistics bulletin 6 Exclusion from School 2007/2008 Scottish Government national Statistics bulletin 1 2

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Highlights case work highlights 1.

Child A v. Girl Guides Association

Case Summary Child A was denied the opportunity to participate in a camping trip because she had Epilepsy. This decision was challenged under the Disability Discrimination Act 1995 at Inverness Sheriff Court. Outcome Girl Guides UK have produced a final draft of their policy on disability discrimination and have produced a plan to disseminate this throughout Girl Guides UK. They have also revised and updated their publication “Including All” for disabled Guides and Brownies and again plan to disseminate this throughout the UK. Beneficiaries All children and young people who have disabilities who attend or wish to attend Girl Guide groups throughout the UK. According to the 2001 census approximately 17% of females under 20 are affected by a disability. As there are approx 500,000 guides throughout the UK (according to Girl Guides UK annual Report 2007), this potentially benefits up to 85,000 girls. GGUK gave a written apology to the child and made an ex-gratia donation of £2,000 to Epilepsy Scotland who were initially approached about this issue before referring it for legal representation. Impact: 85,000 Guides and Brownies across the United Kingdom.

2.

Child G v. The Highland Council

Case Summary Child G, who is blind, was denied the opportunity to participate in a school skiing trip for reasons related to her disability. This decision was challenged under the Disability Discrimination Act 1995 at Inverness Sheriff Court. Outcome The Highland Council revised and reissued their guidelines for off site excursions to fully incorporate their duties under the DDA. This was disseminated to all educational facilities in the region. In addition, the Highland Council has undertaken to review their Disability Equality Duty and action plan in light of this case. Beneficiaries All school pupils or prospective school pupils with disabilities as defined by the DDA 1995 in The Highland Council area. In future due regard will be had to disability equality duties in the provision of services associated with education i.e. school excursions. Impact: 1,000 disabled pupils across the Highland Council area.

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3. Child R v. North Lanarkshire Council Case Summary Child R, who has an Autistic Spectrum Disorder, had his transport to school changed to another provider without any preparatory steps being taken. The child was highly distressed by this change and would not travel to school with the new provider displaying signs of severe anxiety including self-injury. The Council threatened the child’s parents with legal action over his non-attendance at school. Interim orders requiring the authority to revert to the original transport providers was granted by Hamilton Sheriff Court. Outcome North Lanarkshire Council agreed to revise and amend their policy relating to the transport of children with additional support needs to school. In particular, wording was inserted to ensure that if it was not possible to retain the same contract for children with Autistic Spectrum Disorders then adequate transitional arrangements should be made to familiarise them with any change in the way the new contract would be delivered. Beneficiaries All pupils in the North Lanarkshire Council area who have an Autistic Spectrum Disorder. Impact: 408 pupils with an Autistic Spectrum Disorder in North Lanarkshire.

4. Child S v Dundee City Council Case Summary Child S has Tourette Syndrome and other co-morbid conditions and was frequently disciplined for reasons relating to his disability. The cumulative effect was that he became unable to attend school on a regular basis. A case was lodged at Dundee Sheriff Court. However, progress in this case was affected by the House of Lords decision in the London Borough of Lewisham v Malcolm (2008 UKHL 43) case with regard to appropriate comparators. Outcome Dundee City Council issued a written undertaking to implement a programme of training to raise awareness of the impact of the pupil’s conditions and to take reasonable steps to implement an action plan of procedures that will comply with DDA duties. Additionally, all teaching staff at the school will have due regard to and take account of specific disabilities of pupils when applying disciplinary sanctions. Beneficiaries Child D and all other disabled pupils who have specific disabilities which may impact on behaviour attending the same school.

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5. Young Person E v. North Lanarkshire Council Case Summary Young person E was repeatedly excluded from activities at school for reasons relating to her physical disability. The matter was resolved through reference to a statutory process of independent adjudication. Outcome The Council accepted the adjudicator’s recommendations to: • provide a mobi-lift as required to improve access to areas of the school inaccessible to a wheelchair (e.g. the assembly hall); and • provide transport to enable the young person to have equal access to after school activities; Beneficiaries Potentially, all physically disabled school children in the North Lanarkshire Council area as policy and practice issues are amended to reflect the findings of the adjudicator in this case. This is approx. 700 children (source: North Lanarkshire Needs and Resources Fact file 2008).

Impact: 700 pupils with physical disabilities in the North Lanarkshire area.

6. Child L v. K School Case Summary Child L has ADHD and was excluded from an independent school for issues related to his behaviour. His mother challenged the decision under the Disability Discrimination Act 1995 at Glasgow Sheriff Court. Outcome While the matter was initially dismissed at debate stage at the Sheriff Court, on appeal the Sheriff Principal overturned that decision. He confirmed that a failure on the part of a school to take "reasonable steps" which might have avoided the need to exclude could lead to such an exclusion being overturned by the court. Further, it was for the authority to show that they had complied with that duty and not for the parent to provide minute details of what the school should have done. This case is likely to prove highly significant for other disability discrimination cases in schools. Responsible bodies will require to be more pro-active in ensuring that they are complying with the reasonable steps duty. NB. At the time of compiling this report, the School has sought leave to appeal to the Inner House.

Associated Highlights With the assistance of pupils from St. Aloysius College in Glasgow, Childline Scotland and LGBT Youth, we published a booklet called “Be Yourself: your rights are not wrong!” which is a guide for young people to the Sexual Orientation Regulations in an educational context. We are in the process of distributing this through schools and LGBT Youth contacts.

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Casework Analysis Category

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Casework

Male Female Under 26 Over 26 White(Scottish/British /Irish/Welsh/Other) Black Mixed Asian Chinese Gypsy Traveler

19 11 28 2 27 0 0 1 1 1

Total

30

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Advice Analysis Category

Advice Calls

Disability Race Gender Sexual Orientation Religious Belief Human Rights

156 13 0 0 7 14

Total

190

Client Satisfaction On evaluating our service, we asked callers “What three words would you use to best describe the Education Law Unit?” Recurring answers included:

Efficient Friendly Helpful Accessible

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Additional Comments

This unit does astounding work and has changed our lives for the better immeasurably. I feel that the service is under appreciated. All staff I dealt with were extremely professional and impartial and at all times realistic and straight with us. Parent

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I would have no hesitation in recommending ELU to anyone. Parent

We particularly value access to an incisive interpretation of the law applicable to situations where the process is not clear in legislation or guidance. It is reassuring to have advice/confirmation from a legal perspective to back up the info we provide. (Enquire)

Accessibility As the Education Law Unit has traditionally provided a representation service for school pupils with additional support needs, we have always sought to ensure the service was accessible to all. The office premises are fully accessible and leaflets available in additional formats and languages. However, the Grants Programme criteria encouraged review of this and additional steps were implemented to improve accessibility. • Website was redesigned to comply with W3C WCAG 2.0 standards. • Information leaflets produced in a range of formats and languages including Arabic, Chinese, Farsi, Gaelic, Hindi, Latvian, Lithuanian, Polish, Portuguese, Punjabi, Russian, Tagalog, Urdu, Braille, spoken English and BSL video. • Phone translation service. • Access to interpretation service. • Home visits offered where required. • The service is available throughout Scotland including the islands.

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Quality Assurance • Work undertaken is subject to external peer review and monitoring by the Scottish Legal Aid Board. • Member of GAIN (Glasgow Information and Advice Network). • Internal quality assurance process including client evaluation of helpline and case work. In addition, we have a User Advisory Group made up of representatives from various organisations who have an interest in or can assist us to further our work.

Issues of Continuing Concern Homophobic and racist bullying is commonly, in our experience, recorded or treated as “just” bullying, without additional considerations being considered. For example, in one school where a child had experienced racially motivated bullying for a number of years, the reason given by school staff to explain why there were no racist incidents recorded was that the perpetrators did not usually get in trouble and did not know they may have been presenting racist behaviour! This demonstrates a concerning lack of awareness of issued guidelines on dealing with racist incidents in educational settings. Common themes that have arisen are that equality duties are not routinely considered in the development of education policy and/or practices, or in the procurement of services that will be utilised by schools or education authorities. There are a number of cases where children are denied their right to education at all either for a short or longer term period, though this is rarely considered to be a breach of Protocol 1 Article 2 of the ECHR which gives the right not to be denied access to education. Another common issue raised is inequality when it comes to school leaving age. Increasingly disabled pupils or any pupil who is identified as having additional support needs are being asked to leave school on or at the end of the term following their 18th birthday. The reason for this is that education authorities are only obliged to provide additional support to children and young people and in legal terms an individual stops being a young person at 18. In effect it means that some disabled pupils are being denied the opportunity to complete a sixth form of education even when they have expressed a clear wish to do so. Young people without a disability are not being asked to leave when they become 18 and are able to complete a sixth year at school if they so wish. We have raised this matter with the Minister for Children and Young People, who has asked us to let him know which authorities are involved, and we will continue to press for action on a strategic basis – as well as in individual cases.

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Next Steps The growing need for individual casework and advice on discrimination and human rights issues has highlighted that the promised benefits of equality legislation are not yet impacting positively on some of the most vulnerable sections of society. The Education Law Unit is well placed to promote and contribute to the active enforcement of equalities legislation and we aim to do so by: • continuing legal case work, and increasing the proportion of that work in mandates other than disability; • providing information and training on pupils' rights to schools, parents, pupils and voluntary sector organisations, with the goal of increasing relevant referrals; • making creative use of all available legal and administrative remedies to enforce and enhance the equality duties owed by education authorities; • remaining at the forefront of discussions surrounding the operation of the Additional Support Needs Tribunal as it takes on jurisdiction in disability discrimination cases; and • continuing to work with advocacy groups in order to increase the capacity of the voluntary sector to respond to discrimination and human rights issues in education.

More work is required to raise awareness of equality duties in the education sector across all the mandates. Additionally, we recognise there is a clear role for us in highlighting where discrimination occurs over more than one mandate.

Conclusion The Education Law Unit has delivered on its targets for the equality and human rights case work service in its first 12 months. With continued funding we will seek to build on this strong foundation and continue to extend the benefits of our expertise to children and young people across Scotland and across the full range of equality mandates.

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Equality and Human Rights Case Service Report 2008-2009