The impact of the Equality Act 2010 on the exercise of public functions has been considerable. A recent scottish case, DM v Fife Council  CSIH 17, is both a reminder of that impact and of its limitations.
An autistic child was provided private specialist schooling by the local authority. When he turned 18 the authority stopped paying the fees as he was no longer a child. All the expert evidence suggested that an additional year would make DM capable of entering the job market. The authority nevertheless refused to assist any further.
Asserting that the refusal was an unlawful failure to make a reasonable adjustment (relying on both sections 19 and 20 of the Equality Act 2010) the court agreed. It prayed in aid section 149 (Public Sector Equality Duty) and the duty to have regard to the need to advance equality between those with disabilities and those without. It held that when asked to pay the school fees, the authority should have given advice and assistance in finding and applying for bursaries. Doing nothing was unlawful. On the other hand the authority was not required to pay for the fees themselves.
The court was keen to stress that when determining what reasonable adjustment should be made (in the face of a provision, criterion or practice impacting on the applicant), it was necessary to remember that the requirement to make an adjustment under s. 20(3) (so as to prevent any substantial disadvantage being suffered) was an anticipatory requirement: the authority was required to make the adjustment to prevent potential disadvantage which might be suffered by a class of disabled persons. If the claimant came within that class, he could take advantage of the failure to make the adjustment required for that class. However, the extent of the adjustment had to be assessed by reference to what was required for the class and not the individual.
Applied to the facts of the case, it was clear that 'as a class' those who needed more education because of their disability should always be given advice and assistance to find funding for that further education. On the other hand, whilst paying the fees itself might happen in some cases, the court took the view that such payment was not something that was required in every case. Thus it could not be said that paying the fees was a reasonable adjustment required by section 20(3).
It followed that the claimant was able to recover £2,500 for injury to feelings for the failure to provide the relevant advice on funding sources, but he was denied the £45,000 fees for the additional year at the school as being above and beyond that which was required by the authority.
The case is a good example of the court's reluctance to turn a public law power (in this case a power to pay for fees beyond a person's 18th birthday) into a substantive duty by reference to sections 19 and 20 of the Equality Act 2010. The reliance on section 149, when determining what might be considered a reasonable adjustment, is prescient given that the PSED is a 'process' duty rather than an 'outcome' duty.
... the defenders refused, advising that their statutory obligation to provide education came to an end when the child reached the age of 18 ... ... Lady Paton said: “... there had been indirect discrimination ... in terms of section 19 of the 2010 Act in respect of the protected characteristic of disability. “... the defenders had made a decision that they would not advise the pursuer and his family of the various options and strategies available and invite further discussion or applications for grants or bursaries, thus failing to alert the pursuer ... to ways of facilitating the pursuer’s development and learning processes so that he, as a disabled person, could endeavour to achieve the appropriate social, emotional and academic standards which would render his attendance at college – or indeed any other school-leaving goal – more feasible.