Published: 05 Oct 2018
Western Isles Education Authority (Comhairle nan Eilean Siar) has settled a case raised by the mother of a 10 year old disabled pupil, Jonathon Graham, who was left isolated because the school bus provided by the council wasn’t accessible to him.
Occupational therapy reports by council staff had found that separating Jonathan from his school friends when travelling to school, to swimming lessons and on trips was affecting his confidence and made him feel isolated – all of which had an impact on his overall education.
The case was raised at the Additional Support Needs Tribunal for Scotland (ASNTS) and was funded by the Equality and Human Rights Commission (EHRC).
Lynn Welsh, Head of Legal at EHRC Scotland said:
'While we are pleased the local authority has now settled this case, we are disappointed that this could not have been resolved informally without the need to resort to legal action.
'The local authority has a fleet of accessible buses, so this pupil and his family should never have been forced to take this action or indeed have had to wait so long for the issue to be resolved.
'Unfortunately Jonathan has learned at an early age that some people will treat him differently because he is disabled. That is not a lesson that a young disabled people should have to learn. Surely, in 2018, he has a right to expect equal treatment. Sadly he’s had to fight for the right simply to get on the same bus as his friends.'
With the help of Advocacy Western Isles, Jonathan and his family had been trying to get the council to change the bus used for school runs to one that Jonathan could get on and off safely since June 2015 in an effort to resolve the situation informally. The discrimination case raised at the ASNTS argued that the council had not met their reasonable adjustment duty. The council had buses available that would have solved the problem but they argued that they were needed for the main public bus routes on the Island and that buying a new bus was not reasonable.
The case has now been settled after the council agreed that an accessible minibus will now be used to transport all of the pupils, including taking Jonathan home from school. The new arrangements have been successfully trialled and is working well.
Welcoming the settlement Jonathan’s mother, Yvonne Graham said:
'I’m glad that we have finally found a solution to this problem which allows Jonathan to be fully part of the schools life.
'I am frustrated that we ended up having to go to the Tribunal to get a resolution and that we weren’t able to persuade the council to do what is right.
'If it was not for Advocacy Western Isles we would not have known about Jonathan’s rights to challenge the council and get access to Iain Nisbet, a solicitor who specialises in education law and took up the case for us with the Equality and Human Rights Commission.
'I just worry that other parents who are facing the same bureaucracy as I did might just give up and accept what was a second class service. I’m just glad it’s over and Jonathan can concentrate on having a good time at school.'
Lynn Welsh continued:
'This case reminds councils that they are required to think about the sort of adjustments disabled pupils need when planning services and not simply respond when a disabled pupil is registered with them.
'If Comhairle nan Eilean Siar had done that Jonathan and his family would never have been put in the position of having to fight for his right to travel with his friends.
'Disabled pupils have the right to expect the same standard of education as other non-disabled pupils and that includes how they get to the school and participate in the broader curriculum.
'Failing to make adjustments when needed means that disabled pupils are put at a disadvantage and needlessly excluded from the wider life of the school.
'We urge other local authorities, in rural areas in particular, to be far more proactive in their transport provision to disabled pupils.'
Notes to Editors
- Jonathan’s occupational therapist concluded that he requires an accessible bus to travel to and from school and for school trips and swimming lessons. Whilst he is able to safely use some of the busses that the council provide, unfortunately the family did not know from day to day if the accessible bus would be provided, leading to uncertainty and inconvenience for him. It was only when the bus actually arrived at the school that the family would know if they had to transport him themselves. No other pupils were put in this situation.
- Whiles some of the busses provided by Comhairle nan Eilean Siar had grab rails which he could use to get on-board, others did not. As a result teachers had been helping him up the steps but this was unsafe as there have been several near miss incidents.
- The local authority has a fleet of low floor accessible buses (white busses) which are used for public transport. They argued that they have a specific legal duty to provide the low floor buses under the Public Service Vehicle Accessibility Regulations 2000 but that no such regulations apply to school bus routes. They accept that the Equality Act requires them to make reasonable adjustments to policies, criteria and practices.
- The council's response was to provide alterative transport but this meant that that Jonathon was isolated from his friends and made to feel different.
- A settlement was reached after they agreed to change the school bus routes so that an accessible minibus would transport him to school with his classmates.
- The case reinforces findings from EHRC's 2017 UN Convention on the Rights of People with Disability (CRPD) report which called for a renewed commitment to inclusive education and for steps to be taken to ensure disabled pupils have equal access to quality education.
- The EHRC is a statutory body established under the Equality Act 2006. It operates as an independent body to protect and promote equality and human rights in Great Britain. It aims to encourage equality and diversity, eliminate unlawful discrimination, and promote and protect human rights. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited by the UN as an ‘A status’ National Human Rights Institution.