Education Law Unit undertakes record number of cases and enquiries across Scotland

GLC’s Education Law Unit (ELU) has had its busiest three-month period in the last four years. The free service, funded by the Scottish Government, provides legal representation in education law cases across Scotland to parents or pupils. Our solicitors represent cases in: Additional Support Needs Tribunals, the Upper Tribunal for Scotland, Sheriff Courts, and the Court of Session.

ELU also provides “Let’s Talk ASN Scotland”, a national service, in partnership with Barnardo’s. This service provides legal advice, representation and advocacy support for families with a right of reference to the ASN Tribunal for Scotland.

In our most recent quarter, ELU opened 96 new cases for placing requests and Co-ordinated Support Plans (CSP) – double the number of its past highest ever quarter – including seven strategic cases. The specialist service also undertook 170 enquiries in last three months.

Our strategic work is in relation disability discrimination, working with partner agencies on issues such as restraint, seclusion and exclusion in schools, raising awareness of rights to education for disadvantaged children, those in contact with the justice system, those who are looked after and accommodated, those who are from the gypsy/traveller community amongst others.

ELU’s senior solicitor Jennifer Barr said: “We are extremely busy right now which evidences our success in raising awareness of a child’s right to education and the success of our partnership working however conversely our need to intervene demonstrates the extent to which children and young people are not having their right to an education met as well as the volume of work that requires to be done to remedy this”.

Example of enquiries that we deal with daily include:
Case study 1: We were contacted by X, mother of a pupil at a private school. X has been advised that the school were unable to facilitate the pupil on a full-time basis at the school unless she pays an additional £20 per day to cover 1:1 staffing due to X’s diabetes. X did not accept that the 1:1 is necessary provided that the medically reviewed care plan is followed. Further, X had the benefit of a Dexcom machine which continuously monitors her blood sugar levels and updates a mobile phone every 5 minutes.

The Dexcom machine makes aural notification when X’s blood sugar is at level 4. It was X’s position that the use of the medically reviewed care plan incorporating the use of the Dexcom machine is a sufficient means of monitoring the pupil’s blood sugar. We wrote to the private school to remind them of their duties under the Equality Act 2010. It is unlawful for a school to charge a pupil for making a reasonable adjustment in any circumstances, whatever the financial cost to the school and however the school is funded. We sought X to be re-enrolled on a full-time basis with no additional cost.

The issue was resolved, and X was permitted to attend in the afternoon with the extra expense being taken on by the school.

Case study 2: X is an eleven-year-old girl with learning difficulties. She has significant difficulty acquiring literacy and numeracy skills and speech and language delay. She has poor fine and gross motor skills along with retention and working memory difficulties. X attended a Primary School in City of Edinburgh Council until the summer break 2021. She received 1:1 support during her time there. X was due to attend a mainstream Secondary school.

We were contacted by X’s Dad following the refusal of a placing request for a special school. Dad is a sole parent who has his own difficulties. Dad’s own difficulties required us to tailor our advice and ensure that all information was communicated to him in a simple, straightforward manner. Due to his dyslexia, we required to read his written statement to him to ensure his comprehension.

Following a Reference being raised, the Authority maintained their position that there was not a place available at the school for X and that the presumption of mainstream applied. A Hearing was assigned and we began the process of preparing our case. We identified the Head Teacher of X’s former primary school as a key witness.

There can be difficulty in encouraging local authority employees to participate in Tribunal proceedings, however, we managed to persuade the Head Teacher to be a witness. A few days after we obtained the Head Teacher’s statement, the local authority made an offer for X to attend the specified school. By identifying a critical witness and ensuring that they were involved in proceedings it appears that the Authority reflected on what evidence would be presented to the Tribunal and offered a place.

Case study 3: X is an eleven-year old boy with a diagnosis of Attention Deficit Hyperactivity Disorder which he takes medication for. The child also has asthma, eczema, and has difficulties with sleep which he has been prescribed melatonin for. X is in the process of being assessed for Autism Spectrum Disorder by Child and Adolescent Mental Health Services. His estimated age equivalency in all skill areas is under 6years 11months. X was a non-attender at school. The Appellant sought the placement of X at a special school. The Authority refused the request. The Authority proposed the child attend a 1263 strong comprehensive school. The parent requested a special school with a roll of 82 learners.

The Appellant contacted our office and we raised a reference on his behalf. Upon a reference being raised, a Hearing was assigned. We identified a gap in the local authority’s evidence in terms of available teachers that could be deployed. Late evidence was lodged by the authority which was very ambiguous in terms of whether there were available teachers or not.

It stated in the email that there were teachers available and then later stated that there weren’t teachers available. On the morning of the Hearing, the Tribunal requested our position on the evidence being lodged we advised that we did not have any objection to the late evidence being lodged, however, we required the Tribunal to call the author of the email as a witness. The Tribunal called the witness to appear on that day.

When the witness was cross-examined it became clear that the authority did have the capacity to move teachers around. Following the commencement of this evidence, the Hearing was paused to a continued Hearing date. During this time the local authority made an offer for the child to attend the specified school. The Appellant was over the moon. When we told the Appellant, she was in tears as she felt it was truly life changing for her family. The Appellant has contacted us advising that the child loves the school.

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