ES v K School [2009] ScotSC 34 (08 May 2009)

ES v K School [2009] ScotSC 34 (08 May 2009)

The court held that the duty to make reasonable adjustments under Section 28B(2) and Section 28C of the Disability Discrimination Act 1995 can apply to exclusion decisions where the failure to take reasonable steps or make reasonable adjustments may have led to the exclusion. Therefore, it is competent for a parent to seek reduction of an exclusion decision and re-admission under these sections. The pleadings, while requiring some deletions for lack of relevancy or specification, were otherwise sufficient to allow a proof before answer. The Sheriff Principal recalled the interlocutors of the Sheriff and allowed proof before answer, reserving expenses.

Citation
[2009] ScotSC 34
Parties
Appellant/pursuer: ES, as parent and legal representative of LS; Respondents/defenders: K School
Jurisdiction
Scotland
Judgment Date
08 May 2009
Procedural Posture
Summary Application (disability Discrimination Act 1995, as Amended) / Appeal Against Dismissal After Debate on Relevancy and Specification
Outcome
Appeal allowed; interlocutors of the Sheriff recalled; proof before answer allowed; expenses reserved.
Legal Topics
Reasonable Adjustments, School Exclusion, Disability Rights, Statutory Interpretation, Burden of Proof, Code of Practice Compliance
Education Law Disability Discrimination Administrative Law Reasonable Adjustments School Exclusion Disability Rights Statutory Interpretation Burden of Proof +1 more

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Parties

ES, as parent and legal representative of LS

Appellant/pursuer

K School

Respondents/defenders

Procedural Posture

Summary Application (disability Discrimination Act 1995, as Amended) / Appeal Against Dismissal After Debate on Relevancy and Specification

Legal Issues

  1. 1 Whether a parent can seek reduction of a school exclusion decision and re-admission order under Section 28B(2) and 28C of the Disability Discrimination Act 1995, as amended, or only under Section 28B(1)
  2. 2 Whether the pleadings under Section 28B(2) and 28C are relevant and sufficiently specific to allow proof
  3. 3 Whether the school had knowledge or ought reasonably to have had knowledge of the pupil's disability

Ratio Decidendi

The court held that the duty to make reasonable adjustments under Section 28B(2) and Section 28C of the Disability Discrimination Act 1995 can apply to exclusion decisions where the failure to take reasonable steps or make reasonable adjustments may have led to the exclusion. Therefore, it is competent for a parent to seek reduction of an exclusion decision and re-admission under these sections. The pleadings, while requiring some deletions for lack of relevancy or specification, were otherwise sufficient to allow a proof before answer. The Sheriff Principal recalled the interlocutors of the Sheriff and allowed proof before answer, reserving expenses.

Court Disposition

Appeal allowed; interlocutors of the Sheriff recalled; proof before answer allowed; expenses reserved.

Orders

  • Allows appeal
  • Recalls interlocutors of 30 September and 30 October 2008