Legal Interpretations

[labman]

Re: Legal Interpretations

Th is is what the Act states, Section 10 seems pretty irrelevant in this case. Sections b - e are important, but if you notice the wording rovide convenient cop outs!

5)Where this subsection applies, the education authority must—
(a)give a copy of the plan or amended plan—
(i)in the case of a child, to the child’s parent,
(ii)in the case of a young person, to that young person or, if the authority are satisfied that the young person lacks capacity to understand the plan, to the young person’s parent,
(b)ensure that additional support is provided by them for the child or young person in accordance with the plan or amended plan so far as they have power to do so,
(c)seek to ensure that additional support is provided for the child or young person in accordance with the plan or amended plan by any person (other than the education authority) identified in the plan as a person by whom such support should be provided,
(d)co-ordinate, so far as possible, the provision of additional support for the child or young person as mentioned in paragraphs (b) and (c) by the authority and any other persons by whom such support is to be provided, and
(e)inform such persons as they consider appropriate, being persons who will be involved in the provision of additional support for the child or young person, of such matters contained in the plan or amended plan as they consider appropriate.

What steps were taken to try to ensure the appropriate agencies were engaged? How long after trnsfer was your son excluded? Has the school offered any explanation why the appropriate support was not put into place?

Usually, the receiving authority would have sufficient notice of the transfer and the additional needs of the pupil to put suitable provision in place. If the transfer was done hastily and as a result your son did not receive the requisite support, then clearly things might be different.

What were the circumstances surrounding the transfer - did the receiving authority have time to arrange for the provision to be in place, if so, then I think you have a cause for serious complaint.

[Magrew]

Re: Legal Interpretations

Labman, this is a serious complaint. I am presenting it as an appeal against the Additional Support Tribunals decison to the inner house of the Court of Session (Supreme Court in Scotland) in a few weeks. Unfortunately I have no legal representation so it is going forward as written submissions with supplemental questions on the day.

What I am doing at the moment is testing some of my points of argument to see if they are logical and competent. You appear to be particularly well informed in law therefore you will obviously be aware that an appeal can only be on a failure in law rather than a rehearsal of the evidence. I understand the rudiments of the law but I am no legal expert although I did present the case the original tribunal.

It is going to be a challenge but I am determined to present a strong case although it is going to daunting against the respondent's advocate and in front of three senior judges (Law Lords).

[labman]

Re: Legal Interpretations

That's useful to know, thank you. The context makes it much easier to try to help. I was unaware of the 'state of play' with regards to where you were with the complaint, hence my starting at the beginning. Apologies for that, it must have been frustrating for you.

I would be much more help if we were dealing with English Law, as my knowledge of educational law in England is reasonable. Scottish Law is different, but I am happy to try to play devil's advocate with your arguments so you can try to cover any possible flaws.

You made two quotations in post #6, where exactly are they from?

Have you got any explanation on the way to where you are now why the plan was not implemented? Has there been any attempt to explain 'so far as they have the power to do so' which is stated in the relevant legislation if I'm correct?

I'm off to bed now, but will return with interest tomorrow. pm on its way!

[Magrew]

Re: Legal Interpretations

Labman,

Thanks for your help, it is encouraging.

The first quote is from the "Supporting Children's Learning - Code of Practice" which is the operational document that is associated with the Additional Support for Learning Act and accepted by the courts a sbest practice.

The other quote is a direct quotation of their interpretation of that requirement recorded in a tribunal decision. I hope the misinterpretation is obvious. If it is then it should be so to the courts.

There has never been any claim that they could not deliver any of the support because they did not have the power to do so probably because that argument would not get off the ground. They had access to apropriate agencies to provide the prescribed support. Their argument to date is that they were assessing the support prior to implementation but that also fails in law. They are required to implement what has been planned until they complete an appropriate review to amend that plan. Incidentally they also failed on this count and there is a tribunal decision in our favour on that count. It took them a year to undertake a review that should hav ebeen completed in 12 weeks.

Sleep tight

[Celestine]

Re: Legal Interpretations

Thread Moved to VIP for confidentiality reasons.

Welcome to VIP Magrew :beagle:

[labman]

Re: Legal Interpretations

I shall set this in a fuller context and see if that makes my argument clearer.

In this instance an authority were obliged to undertake a specific action, the terms are outline below:-

"85. From the date of transfer, the co-ordinated
support plan is deemed to have been prepared by the receiving education
authority. Subject to any review they may initiate, (which they may do
immediately if they consider it necessary or expedient as a significant change
in the circumstances of the child or young person) the new education authority
are bound by the terms of the co-ordinated support plan and the plan must be
treated in the same way as any other co-ordinated support plans prepared for
children and young people in their area. Any review will be subject to the
provision in section 10 of the Act and in the Regulations."

My argument is that this paragraph states that they were required to deliver the terms (bound by the terms) of the plan until a review had been undertaken.

The opposing view is:-

"The Additional Support Needs Code of Practice makes it clear that the receiving
Education Authority adopts the CSP and takes such steps as it can to implement
it pending a review process."

To paraphrase they have interpreted that the authority are only required to deliver what they can until a review has been undertaken.

I appreciate that this is not a consumer rights issue but I think the interpretation matter is something that you guys appear very able to pass comment on. I am just trying to establish if I have a point of argument worth debating.

Your opinions have been helpful and very much appreciated. I would be very pleased if anyone was able to offer further commnet on the fuller context.

The second quotation is not what the law actually says in Section 10 of the Act. The words used are, "so far as they have the power to do so," not 'take such steps as it can.' There is a significant difference. The Act is very clear they must do it if they have the power do to so.

The school may be able to say we cannot implement it now as they may not immediately have resources available, but they cannot say we cannot implement it, full stop. If they have the power to access the requisite resources, it reads to me like they have a legal obligation to do so. Why haven't they?

[Magrew]

Re: Legal Interpretations

That is precisely the point I am focussing on in this part of my argument. Their was a duty to provide support, they were bound by the terms of the plan, they had not completed a review to modify that, there was therefore no excuse that this support could not have been implemented for Andrew at some time between the 24th February when he joined the school and 6th October when he received a 15 day exclusion. That exclusion then commuted to a permanent exclusion on the 14th January 2011. He has not been back to school since the 6th October 2010.

The multi-agency support, outlined as a medical psychologist (to differentiate from an educational psychologist, strange term I know but it was the previous EA that chose it) and speech and language, we had also identifed the required support in relation to visual stress through a formal assessment in May of that year, were not invited to participate in meetings that were specifically called to review support and to plan mitigation to avoid exclusion.

This has not been deemed to be disability disrimination becasue in the tribunal's view none of the above could be considered to be reasonable adjustments that through their failure put Andrew at a substantial disadvantage. That means they have judged that the failure to provide "significant additional support from appropriate agencies", which is what is coordinated through the implementation of the coordinated support plan, did not substantially disadvantage him.

These decisions appear perverse, and we have evidence coming out of our ears that these failures occured even to the point of a decision in law on the failure to review. I sometimes wonder if this is all some kind fo twisted wind-up.

They have also taken the view that the failure to review the plan (the CSP) to match it more effectively to the new EA's facilities and resources also was not a failure to make a reasonable adjustment that substantially disadvantaged Andrew

[labman]

Re: Legal Interpretations

were not invited to participate in meetings that were specifically called to review support and to plan mitigation to avoid exclusion.

Where the education authority seek advice and information from appropriate agencies or other persons then
the Regulations require the authority also to seek and take account of the views of the child, the child’s parent or the young person.

Taken directly from Chapter 5 of the CoP

[alham]

Re: Legal Interpretations

To summarise, your son required support, which was agreed and acknowledged prior to him moving to the secondary school. At that point he received no further support, as a result of which he's been disadvantaged? Reading your thread it appears clear that appropriate steps have not been taken as and when required.

I would like to make two points regarding your case - firstly, EAs are populated by jobsworth (I know, had to deal with them on behalf of my family many a times) who hate to admit that they do make mistakes, and sometimes the only way to demonstrate their incompetence is to rub their faces in doodoo, legally speaking; and second HUMAN RIGHTS - surely your son's human rights have been infringed in various ways and there is no limitations on legal challenges under the legislation

[Magrew]

Re: Legal Interpretations

You would think that human rights would be relevant but in our experience that doesn't seem to matter.

Some day it may be appropriate for me to elaborate on these matters but currently that is not the case. The reason I opened this thread was to see if others had examples of perverse interpretations from legal authorities. I would find it interesting as an opportunity for insight and knowledge into how matters can pass through the various legal authorities that we all have to deal with on occassions.

Has anyone got any other examples? By reviewing and disecting them it could offer us all useful info for our future skirmishes.

[Guest]

Re: Legal Interpretations

The reason I opened this thread was to see if others had examples of perverse interpretations from legal authorities. .

This forum is full of them, they are either harmful or beneficial depending on which side of the fence you are standing on.

One mans loophole is anothers statutory protection.

Much is down to the limitations of the English language and poor draftsmanship in my opinion.

D

[Magrew]

Re: Legal Interpretations

Perhaps in some cases, in others I have seen what I can only view as the deliberate choice of the legal authority to reach a decision that they had prejudged before hearing the evidence. For some reason in these cases the legal authority has followed a path that is contrary to the evidence and the written law despite the clarity of the both.

Now I don't know why this happens but it is not nice being on the receiving end of it. Mind you that is why we all have the right of appeal, however, very few of us can afford that right.

[alham]

Re: Legal Interpretations

With regards to Human Rights - check out Protocol of 20.3.1952, Article 2 and Protocol 12, Article1, paras 1&2.

With regards to different meanings arising as a result of Law and Guidance Notes - I had a ding-dong with my council regarding council tax benefit and the way they calculated and interpreted directions for such calculations. My self-employment earnings fluctuated widely and the council were intent on recalculating liability EVERY months, which were expensive in their time and resources (45 pages plus P&P) and did not allow me to budget. Rules said that council had a responsibility for accuracy whilst allowing them to make an assessment on yearly earnings, the last bit my council chose to ignore. Almost a year later I got through to the Head of Finance who accepted my arguments - excuse for prevarication? they were acting in everyone's interests!!!!

Regarding your case - am I right that you are talking about the decision of the tribunal - from what I know about Scottish legal system they are law on themselves and currently undergoing review. I know it doesn't help in the short term but there are legal challenges still open to you and have you tried involving your local MSP?

[Magrew]

Re: Legal Interpretations

I took our case to the EHRC. They assessed it and said it was not one of their priority issues!!!

We did contact our MSP early in the process, she suggested we go withthe flow. Obviously that is not an acceptable option. The flow was inadequate support.

Now it is at the court of session to establish if the tribunal is acting unlawfully.

[Magrew]

Re: Legal Interpretations

I would be pleased if anyone was prepared to consider the following elements of the Equality Act 2010. We are specifically looking at Section 20 and Section 136

"20 Duty to make adjustments

(1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2)The duty comprises the following three requirements.

(3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. "

I have ommitted the remainder of this clause for clarity but if you are interested it can be viewed here http://www.legislation.gov.uk/ukpga/2010/15/section/20

Now taking into account the example at the beginning of this thread, the failure to implement a statutory plan, then am I correct that
the judicial authority would be required to bring into play Section 136 of that act (below) and the burden of proof would move to the respondent in the case.

"136 Burden of proof


(1)This section applies to any proceedings relating to a contravention of this Act.

(2)If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3)But subsection (2) does not apply if A shows that A did not contravene the provision.

(4)The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5)This section does not apply to proceedings for an offence under this Act.

(6)A reference to the court includes a reference to—

(a)an employment tribunal;

(b)the Asylum and Immigration Tribunal;

(c)the Special Immigration Appeals Commission;

(d)the First-tier Tribunal;

(e)the Special Educational Needs Tribunal for Wales;

(f)an Additional Support Needs Tribunal for Scotland."



What I am unclear about is the phrase "in the absence of any other explanation". I have taken this to mean that if the pursuer has demonstrated a potential failure to make reasonable adjustments, regardless of any statement made by any other party, then the respondent has to prove that they were made rather than the pursuer prove that they weren't.

Would this be a correct interpretation? If so can the statement of potential failure be simply "They did not give me a parking space closer to the front door" for example, or does it have to be accompanied by the substantial disadvantage this may have caused?