Disability Discrimination Claims
From the 18th March 2011, the Additional Support Needs Tribunals for Scotland can hear and decide claims of disability discrimination relating to pupils in school education in Scotland under the terms of the 
Equality Act 2010, Schedule 17, Part 3. It can consider appeals (claims) made by the parent or the person where they have the capacity to make the claim against the responsible body that has discriminated against the person because of a disability.
Schools must not treat disabled pupils less favorably because of their disability. Discrimination can also occur when a disabled pupil is placed at substantial disadvantage because reasonable adjustments have not been made to account for their disability.
Legislation
The Additional Support Needs Tribunals for Scotland will hear Disability Discrimination claims against the responsible body, from the person's parent or where the person has capacity to make a claim. Equality Act 2010, Schedule 17, Part 3.
The Equality Act 2010, Part 2, Chapter 1, Section 6 defines a person with a disability as a person who has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his/her ability to carry out normal day to day activities.
The Tribunals can hear claims of disability discrimination when this happens in an education setting in Scotland. This also includes a school managed by an education authority, an independent school or grant aided school.
Claims to the Tribunal may be made in the following circumstances:
Admissions - the responsible body must not discriminate because of a pupil's disability.
This would apply:
- in the way in which the responsible body has decided who gets a place in schools
- in the terms on which they offer pupils a place at the school; and
- by refusing to accept, or deliberately not accepting an application from a disabled pupil for admission.
Exclusions - It is against the law for the responsible body to discriminate against a disabled pupil by excluding him/her from the school because of their disability or where the behaviour resulting in the exclusion arises due to their disability.
Equality Act 2010, Schedule 17, Section 14
Education and Associated Services - A school must not discriminate in the Education and associated services it provides for disabled pupils. This covers all aspects of school life and the teaching provided to pupils. The responsible body of a school has a duty to make reasonable adjustments to support the disabled pupils.
Equality Act 2010, Part 6, Chapter 1, Section 85(6)
The procedures of the Tribunals are governed by a set of Rules. The Additional Support Needs Tribunals for Scotland (Disability Claims Procedure) Rules 2011
What's involved for Claimants
A parent or person who has the capacity to make a claim, may do so by completing the claim form which asks for the information necessary to make a valid claim. The claim form can be downloaded or completed online and sent electronically to ASNTSinquiries@scotland.gsi.gov.uk. A claim submitted electronically will normally be accepted without the claimant's signature.
We have produced a simple User's Guide to disability discrimination claims at the Additional Support Needs Tribunals for Scotland which is designed to help you, as the parent or claimant, to decide whether a claim can be made. Hard copies of the guide are available from the Secretariat on request.
Making a Claim
If a parent or person disagrees with the responsible body about matters relating to an alleged act of disability discrimination in school education, they have six months from the date when the act occurred to make a claim to ASNTS. A further three months would apply if the dispute has been sent for conciliation.
Representation
Parents will often be unfamiliar with the Tribunal process and may want someone to represent them at the hearing. This could be a family member, friend, someone from a representative organisation or someone with a legal qualification. If a parent decides to have a representative this should be confirmed in writing and under the Tribunal rules all communications from the Tribunals will only be sent to that named representative.
Both parties can choose to have a representative or change a representative at any point prior to the hearing but it is important that the party informs the Secretary in writing without delay.
Legal aid (Assistance by way of Representation, ABWOR) may also be available for Disability Discrimination claims but this will depend on each individual's circumstances. In some instances, sponsorship can be obtained from the Equality and Human Rights Commisson.
The Hearing
A Tribunal of three people will hear the claim. The Convener, who has a legal qualification, will chair the hearing. The Members have knowledge and experience of children or young persons with disabilities within the meaning of the Act.
Parties should consider if they intend to call witnesses. It is possible for a witness to give written evidence or to speak to the Tribunal by telephone conference call if they are unable to attend in person. A party is usually restricted to five witnesses unless they make an application for additional witnesses to attend.
The Convener will normally hold a telephone conference call prior to the hearing date to discuss how the hearing will proceed, confirm what witnesses are to be called and to agree a running order. It is also an opportunity for parties to clarify any preliminary issues prior to the hearing.
The Tribunal can hear from the parent or person as long as they have the capacity to make the claim.
We hold hearings throughout Scotland. In selecting the venue we ensure that this is at a location which is private and convenient for both parties. We will try to arrange a venue close to where the parent lives. Hearings are held in normal working hours, most start at 10am. Hearings are held in a variety of venues including Tribunal premises, universities/colleges, business centres and hotels and in some local authority premises where parties consent.
It is difficult to say how long a hearing will last as it depends on how many witnesses require to be heard.
Scheduling the Hearing
If your claim falls within the Tribunals' jurisdiction, we will send you a letter informing you that your claim has been registered. We will also send the responsible body copies of all the documents you have sent us and invite them to respond.
At this point we will also set a date for your hearing so that you can start to prepare your hearing. This date will only be changed in very exceptional circumstances. You will normally have 4 weeks (20 working days) to prepare your Case Statement. This will give you the chance to submit written evidence to be relied on that you have not already submitted. The hearing will generally take place about 3 weeks after the end of the case statement period.
Case Statements
In most cases, the case statement period will be 30 working days. The parent or young person normally has 20 working days and the responsible body have the remaining 10 working days to consider if there are further documents they wish to include or if they want to submit witness statements or a statement of arguments, known as a case statement. The responsible body have the final 10 working days to respond to the parent's claim, as any documents submitted will be copied to the responsible body.
If your claim is time critical e.g. an exclusion, or will have an effect on an event, you can request a shorter case statement period. You will need to provide evidence of why you believe the claim should be dealt with urgently.
If there is any relevant up-to-date information or written reports you can send them with your case statement. If you think your original claim gives us enough information and you have no further comments to make, you do not need to send a case statement. However there is a requirement for the responsible body to respond. The responsible body's response must say whether it opposes the claim, it must state why and provide evidence to support this.
Once the case statement period has ended we will send you the 'bundle'. This contains all the information provided by both parties, as well as the original claim and any preliminary decisions or directions made by the Convener. These bundles are also sent to the resonsible body and to the Tribunal members to help everyone prepare prior to the Hearing.
Help and Support
Submitting a claim does not mark the end of discussion between the parties; both parties should continue to seek to reach an agreement wherever possible.
The Equalities and Human Rights Commission no longer provides a conciliation service or operate a helpline. There is a new Equality Advisory Support Service (EASS) that has replaced the ERHC helpline and information regarding this is available on the EHRS Scotland website which can be accessed from the following link:
http://www.equalityhumanrights.com/scotland/contact-the-scotland-office/
Information abouit the closure of ERHC helpline and opening of EASS including details of the service EASS provide are available at this link:
http://www.equalityhumanrights.com/about-us/equality-advisory-support-service/
You can also write to them at:
Freepost RSAB-YJEJ-EXUJ
Equality and Human Rights Commission
PO Box 26961
Glasgow
G2 9DU
The conference call procedure is designed to try and ensure that only those cases where there is dispute between parties which cannot be resolved without a hearing come before the Tribunal.
Enquire, the national advice body for additional support needs and diability discrimination will be able to provide details of support groups closest to where the parent lives or those organisations which specialise in the area where the child's support needs lie. There are a number of organisations which can assist parents to prepare for a Tribunal or even attend as their representative. Enquire will be able to provide you with details of these organisations.
The Learning and Teaching Scotland web service provides support, information and resources for all areas of the Scottish curriculum and promotes developments within Scottish Education. LTS Online contains a wealth of resources for Scottish teachers and educationalists from Early Years through to National Qualifications. The web service also provides support materials for teachers to support practice and continous professional development.
The Scottish Government web site has more information about other Scottish public bodies including other tribunal bodies.
The Tribunal staff can advise and answer questions about the process but it is not appropriate for them to advise parties how they should present their case or give a view on the outcome of a claim. If you have an enquiry about the process, please call our helpline on 0845 120 2906.
There will be a database of anonymised decisions on our website. This should provide information about the range and type of issues which have come before the Tribunal and the sort of evidence which is usually considered.
What's involved for the Responsible Body
It is our aim to provide the best possible service to all responsible bodies involved in the Tribunal process.
The Response
When the responsible body receives a letter informing them that a claim has been registered, they are asked to respond no later than the end of the case statement period. The responsible body has the last 10 working days of the case statement period to consider if there are further documents they wish to include or if they want to send a statement of arguments. Please note that if the information in the claim is detailed, the responsible body will be able to make an informed response and will have no need to duplicate the documents already received from the parent or person making the claim. The responsible body's response must say whether it opposes the claim and, if it does, it must say why and provide evidence of this.
There is no requirement on the parent or person making the claim to produce a case statement but there is a requirement for the responsible body to respond otherwise they may no longer be entitled to take part in those proceedings. (The Additional Support Needs Tribunals for Scotland(Disability Claims Procedure) Rules 2011 Rule 10(4))
Once the case statement period has ended we will send you the 'bundle'. This contains all the information provided by both parties, as well as the original claim. These bundles are also sent to the parent or person making the claim and to Tribunal members to help everyone prepare prior to the Hearing.
The Decision
After the hearing a decision will be issued as soon as possible and normally within 10 working days (2 weeks). Where there has been an oral hearing the decision will be added to the decisions database on the website in an anonymised format.
Appeal Rights
A party may make an application to the Tribunal for the decision to be varied or revoked.
There is a one month time period for this procedure after the decision has been issued.
The Tribunal may review or revoke the decision if the Tribunal is satisfied that:
- Its decision was based on an error of fact or in law
- A party who was entitled to be heard at a hearing but failed to be present or represented had a good reason for failing to be present or represented and the interests of justice require:
Or
- Otherwise that the interest of justice require.
Either party can also make an appeal direct to the Court of Session or:
- After a review application has been refused
- If the party wishes to appeal the varied decision
A party cannot apply on the grounds that it does not agree with the decision; and error in law must be identified. This where the Tribunal has not correctly applied the law or has not explained its decision adequately.
There is a 42 day time limit for any appeal to the Court of Session.