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The Equality Act 2010: Consultation on Secondary Legislation that will enable the Additional Support Needs Tribunals for Scotland (ASNTS) to hear Disability Claims Cases in School Education

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Background

Introduction to the Equality Act 2010

3. The Equality Act aims to strengthen the law to support progress on equality. The Act consolidates and harmonises a range of equality legislation, replacing familiar laws such as the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.

4. The Equality Act provides protection from discrimination, harassment and victimisation based on a range of 'protected characteristics'. These characteristics are defined in the Act as race, sex, disability, sexual orientation, religion or belief, age, gender reassignment, pregnancy and maternity, and marriage and civil partnership.

5. Discrimination means, in a particular situation, treating someone with a protected characteristic less favourably than someone would be treated who does not have that characteristic. The treatment must be because of that characteristic. Harassment is unwanted behaviour towards someone with a relevant protected characteristic, which has the purpose or effect of violating the dignity of that person, or creating for them an intimidating, hostile, degrading, humiliating or offensive environment. Victimisation occurs when a person, with or without a protected characteristic, is treated badly because they have taken action related to the Equality Act, such as making, or helping someone to make, a discrimination claim. Part 2 of Chapter 2 of the Act defines discrimination, harassment and victimisation in more detail.

6. Part 6 of Chapter 1 of the Act relates to school education and makes it unlawful for education bodies to discriminate against, harass or victimise a school pupil, or prospective school pupil, in relation to the terms on which it offers him or her admission, by not admitting him or her, or in the way it treats the pupil once admitted, because of their disability.

7. Schedule 17 of the Equality Act deals with enforcement of the Act's provisions for pupils, with Part 3 applying to the ASNTS. Paragraph 8 of Part 3 states that a claim that Chapter 1 of Part 6 has been contravened will be made to the Tribunal by the person's parent or, where the person has capacity to make the claim, the person.

Extending the Jurisdiction of the ASNTS to Hear Disability Claims Cases

8. The power of the ASNTS is currently conferred by The ASL Act 2004 as amended, which confers upon the Tribunal jurisdiction over cases relating to additional support needs. More specifically, under section 18 (1) of the ASL Act 2004 as amended, a young person (where they have the capacity) or the parent of a child, or young person who does not have capacity, may refer to the ASNTS certain decisions, failures, or information in relation to a co-ordinated support plan or placing request for any child or young person whose school education an Education Authority is responsible.

9. Part 3 of Schedule 17 to the Equality Act will extend the power of the ASNTS to include all disability claims cases, which covers discrimination, harassment and victimisation, for all Scottish Schools. Currently, disability discrimination cases in school education are heard by the Sheriff Court in Scotland; this jurisdiction will be transferred to the ASNTS. The reasons for making a claim are not changing. Harassment and victimisation relating to disability in school education have been newly introduced by the Equality Act.

10. The ASNTS will hear cases involving education authorities and, for the first time, independent and grant-aided schools, and also children who may not have additional support needs (and therefore fall outwith the ASL Act 2004 as amended). The cases will be related to the provision of education and associated services, as well as those concerning admissions and exclusions.

Reasons for Extending the Jurisdiction

11. The policy behind extending the jurisdiction of the ASNTS to hear disability claims cases is based on the premise that the Tribunal aims to provide independent and expert decision making, in an impartial, efficient and effective manner, and seeks to be user-friendly through informal and flexible proceedings and to be accessible to all users.

Previous Consultation on Extending the Jurisdiction

12. From June to August 2007, the Scottish Government undertook a consultation in Scotland to obtain the views of key stakeholders regarding the proposal to transfer disability discrimination cases from the Sheriff Court to the ASNTS. In addition to the consultation, a national seminar took place on the 20 August 2007.

13. The general view of stakeholders was that disability discrimination cases should be transferred to the ASNTS, mirroring the situation in England and Wales. Some key stakeholders were also in favour of extending the powers of the ASNTS to hear disability discrimination appeals relating to schools admissions and exclusions in education authority schools. These appeals are heard by Education Appeals Panels in England and Wales.

14. The extension of the ASNTS jurisdiction to hear all disability discrimination cases in school education was agreed with Adam Ingram, Minister for Children and Early Years. The Equality Act extends the jurisdiction of the ASNTS further to include disability harassment and victimisation cases.

Power of Scottish Ministers to Extend the Jurisdiction

15. Paragraph 11 of Schedule 1 to the ASL Act 2004 as amended states that Scottish Ministers must make rules as to the practice and procedure of the ASNTS. These rules are detailed in The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 (as amended by The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Amendment Rules 2010), and reflect that the ASNTS deals only with cases relating to additional support needs.

16. Paragraph 10 of Part 3 of Schedule 17 to the Equality Act confers a power on Scottish Ministers to make secondary legislation providing new rules of procedure for the ASNTS, to enable the Tribunal to hear disability claims cases. The section that follows details the secondary legislation that Scottish Ministers propose to make. The purpose of this consultation is to seek your views on the proposed secondary legislation.