01 April 2021
MS v General Teaching Council for Scotland [2021] CSIH 17: This interesting appeal, before the Second Division of the Inner House, considered whether the respondent's Fitness to Practise Panel had given adequate consideration to the Appellant's Asperger's when assessing his fitness to practise.
The opinion of the court was delivered by Lady Dorrian.
The appeal was brought by a teacher with Asperger’s syndrome who had been removed from the teaching register on the grounds that he was found unfit to teach. The court allowed the appeal, and the case was remitted to a differently constituted GTCS panel for reconsideration.
At the original hearing, the panel were considering a recommendation from the teacher’s employer, the local authority, that his provisional registration should be cancelled because his fitness to teach was impaired by lack of professional competence. The teacher believed that he met the standards expected of a probationer and his failure to meet the standards expected of a fully registered teacher was because of the school’s failure to make sufficient reasonable adjustments for his Asperger’s syndrome. He considered that he needed a further probationary year to seek to meet the relevant standards.
The original panel determined the teacher failed to meet the standards of either a fully registered teacher, or a probationary teacher, and removed his name from the register of teachers. They also prohibited him from applying for re-registration for a period of one year from the date of removal.
The teacher brought the appeal on the basis that the panel failed to properly take account of the effect of his Asperger’s and the absence of reasonable adjustments to accommodate him.
The court held that the panel failed to properly consider whether the teacher’s failure to meet the teaching standards was due to the failure to make sufficient reasonable adjustments.
Crucially, the court accepted the teacher's argument that whether the school had made sufficient reasonable adjustments was a matter for opinion evidence. However, the proceedings were inquisitorial not adversarial. The panel should have investigated the matter further because it was an important matter going to the heart of his fitness to teach. In such proceedings, panels have a responsibility to seek out the relevant information required to make a decision.
The court found the panel could have adjourned the hearing to give the parties the opportunity to submit skilled evidence. The panel had no medical evidence, however the court held they erred by effectively ignoring the teacher's Asperger’s, any reasonable adjustments, and their possible effect on his progress. This meant the procedure had not been fair and just.
Where it considered that it had been left with an absence of information on a key matter, the court held it was incumbent upon the panel to ask for such information to be provided. The court did not accept the submission made for GTCS that doing so would have imperilled the independence of the panel or the fairness of proceedings. The court determined it would merely have assisted in putting the panel in a position to determine the central issue.
The court did express sympathy for the panel due to the lack of any medical or expert evidence from the appellant. Nevertheless, the court held that the panel had effectively ignored the issues relating to the appellant’s Asperger’s, reasonable adjustments, and their possible effect on his progress. It was not open to the panel to disregard that evidence without properly explaining the basis upon which it was taking that course. The appeal was allowed on that basis.
The case serves as a reminder of the inquisitorial nature of such regulatory proceedings and the responsibilities of the panels and the parties at them. The benefit of having professional representation, skilled in such proceedings, cannot be underestimated.
For more information, please contact:
Natalie McCartney, Associate & Solicitor Advocate: nem@bto.co.uk / 0131 222 2957