Fiona Scolding

Introduction & Contact details

"...incredibly approachable and grasps the important issues with ease." – Chambers UK (2011)

“...very attuned to the needs of the clients, shows great common sense and is a pleasure to instruct’ – Legal 500 (2010)

Fiona undertakes work in the fields of Education, Community Care and Housing for a variety of clients, both individuals and local authorities and institutions. She has experience of all levels of courts and tribunals, including several High Court and Court of Appeal cases and has experience of general civil work in the County and High Court. Fiona was appointed a Deputy District Judge in 2010.

Fiona has been appointed as Panel Counsel to the Equality and Human Rights Commission with effect from 1st February 2011.

Academic

Fiona was editor of the Education Law Monitor (Informa) from November 2003 until February 2005. She is the co-author of the Law Society “Health and Social Care Handbook” (published July 2006).

Fiona undertakes training both for national training organisations (including LGG, IBC and CLT) on issues relating to both education and community care, and regularly provides bespoke training for local authorities and institutions on topics pertinent to them.

Fiona undertakes training both for national training organisations (including Lexis Nexis, Informa, CLT, LGG and IBC) on issues relating to both education and community care, and regularly provides bespoke training to charities, individuals and local authorities in these areas.  She also regularly contributes to journals which specialise in Education Law.

Qualifications

• MA (Cantab)
• Dip Law (City University) 

Professional Associations

• Administrative Law Bar Association
• Education Law Association (Member of Executive Committee)
• Founder Member, Social Housing Law Association
• Human Rights Law Association
• London Common Law and Commercial Bar Association
• Personal Injury Bar Association
• Procurement Lawyers Association

T:   020 7242 2523 (switchboard)
F:   020 7691 1234
E:   fiona.scolding@hardwicke.co.uk

Education

Fiona has been considered a leading junior in Education Law by both Chambers and Partners and the Legal 500 since 2002.

Fiona has considerable knowledge and experience of admissions, exclusions, regulatory and disciplinary work (including child protection issues), school organisation, school transport , human rights and other equality issues.  She regularly advises individuals, charities, local government and schools on the ever changing and fast growing field of education law, including advice on general policy issues.  She has advised on  initiating and amending primary legislation for national organisations and authorities.

Fiona has advised and represented individuals and universities and institutions in various claims involving exclusion, admissions, equality duties, human rights, regulatory and disciplinary issues, breach of contract and tortious claims.  She has a good knowledge of the OIA and of other university appellate procedures.

Fiona is a school governor of an inner city school so had direct experience of managing and running a school. She regularly contributes to specialist journals in this area.

Relevant Cases

Essex CC v Williams [2011] EWCA Civ 1315
Fiona was instructed by Essex. The Court of Appeal determined that those over the age of 19 could not be considered to be a "child" within the meaning given in s312(5) of the Education Act 1996 and so authorities did not have to maintain Statements of SEN for children over that age.

R(N) v IAP [2009] EWCA Civ 108
Court of Appeal case in which Fiona represented the appellants. The case concerned the permanent exclusion of a secondary school pupil with Attention Deficit Hyperactivity Disorder and the related issues of unlawful disability discrimination.

R(N) v IAP [2008] EWHC 390
Another case concerned with whether the Independent Appeal Panel erred in law in finding permanent exclusion an appropriate sanction notwithstanding existence of a SEN Statement.

Governors of X School v (1) SP (2) SENT [2008] EWHC 389
Fiona represented the respondent. The case concerned a pupil with Attention Deficit Hyperactivity Disorder whether school had discriminated against pupil in effecting exclusions. The court was asked to consider the definition of ‘reasonable adjustments’ in relation to the LEA’s duty.

C v SENT [2007] EWHC 1812
In this case, the parents were challenging the contents of a SEN Statement of their child with hearing difficulties. They contended that the school named in the statement was not suitable for their child. This appeal involved expert evidence provided by an audiologist.

Court of Protection

Fiona has acted for a number of Authorities, Individuals, and the Official Solicitor in cases involving vulnerable adults which have been referred to the Court of Protection.  She has undertaken appeals under s21A of the MCA 2005 involving deprivation of liberty in the High Court, and advised several local authorities and individuals of the practice, procedure and policy of ensuring adherence to the DOLS safeguards, including advice on whether or not various actions are or are not a potential deprivation of liberty.

Fiona has also undertaken several cases involving complex issues of both capacity, and the continuing welfare of vulnerable adults, including claims of emotional,  physical and financial abuse, which has often involved issues of Adult Safeguarding and criminal offences, as well as advising and dealing with deprivation of liberty issues associated with these proceedings.  She has experience of the interrelationship between COP and the Administrative Court, particularly in the context of service provision decisions .

She is fully conversant with Adult Safeguarding policies and procedures, and with appropriate procedures for emergency applications, where necessary.  As she also has experience in mental health law, she has also provided advice and
representation in cases where there is crossover between the MHA 1983 and the MCA 2005, including guardianship and compulsory detention.

Her background in education and community care work for both adults and children mean that she is fully familiar with the assessment and service provision of health, social care and education for vulnerable adults, from young adults with learning disabilities through to very elderly and frail adults with mental and physical disabilities.

Fiona has also advised and represented The Official Solicitors, Authorities and Individuals in cases involving financial affairs, both in tandem with, but also stand alone applications to COP, which often involve allegations of financial impropriety and abuse.

Procurement

Fiona has undertaken a large amount of judicial review and public contract regulation litigation associated with the tendering process undertaken by the Legal Services Commission for their civil tender round.

Fiona has defended approximately 25 claims for the Legal Services Commission over the past 6 months.  This has included 2 reported cases – R(Alan Rutherford) v LSC [2010] EWHC, which dealt with the issue of delay and time limits for bringing claims against tenders in a judicial review context, as well as revisiting whether or not the Public Contract Regulations 2006 were an exclusive remedy for disappointed bidders, and JR Jones v Legal Services Commission [2010] EWHC where Fiona successfully defended a challenge by a disappointed bidder on the issue of a mistake within a tender, and the duty of the public authority to correct such mistakes which are made.  This case reviewed all the relevant EU jurisprudence on this topic, as well as looking at the “margin of discretion” permitted to tendering authorities during bids.

Fiona is currently defending claims brought under the Public Contract Regulations 2006 which involve consideration both of the automatic injunction under s47G, and also whether or not a declaration of ineffectiveness should be made (the first case to consider this in UK law following the introduction of the Remedies Directive into UK law in December 2009).

She is also involved in a large number of continuing judicial reviews on this issue involving questions of limitation following the decision of Uniplex: of the effectiveness of the Public Contract Regulations where the contract has been entered into: and onto the adequacy of damages as a remedy as well as the interrelationship between public law remedies in UK law and their overlap with EU jurisprudence on transparency, proportionality and fairness.   The LSC Civil tender was the largest tender run in the UK (in terms of numbers of tenderers) by the Government to date, and Fiona has therefore advised on all aspects of public tendering processes.

Fiona also provides advice to local authorities on practice and procedure in public procurement cases, and is particularly interested in shared services.   Fiona can advise on both public law and public contract regulations procedures.

Public Law

Fiona has a wide range of experience of representing parents and local authorities. Her practice is focused on local government, community care and education law.

Allocations & Homelessness

In addition to her core practice areas of education and social welfare, Fiona’s public law practice comprises statutory homelessness appeals. She is also experienced in running public law defences to possession actions.

Benefits & Social Welfare

She has a very good knowledge and experience of social services and health authorities and so can advise on a cross disciplinary basis on these issues.

Central & Local Government

She advises clients on issues concerning access to information, data protection and other areas of local government law. She has experience of all aspects of the powers of local authorities in discharging their statutory duties, including on the interrelationship with the health authority.

Community Care

She has experience of all aspects of the duties of powers of local authorities in discharging their community care /social welfare services, including on related issues concerning the interrelationship with the health authority.

Discrimination

Fiona has extensive and specialist experience of representing parents and local authorities in cases involving special educational needs and disability discrimination.  She advises regularly on complex issues concerning residential placements, health and social care issues within SEN, and on all other areas of SEN law.  She regularly undertakes disability discrimination claims in the Tribunal and in the County Court.  She also undertakes appeals from SEN Tribunals to the Upper Tribunal, Administrative Court  and to the Court of Appeal.

EU Law

Fiona has good knowledge of this subject area, and particularly in how the legislation and recommendations impact on healthcare and education law.

Healthcare Law

Fiona specialises in community care work, particularly relating to children and vulnerable adults (including those with mental health disorders) , including judicial review,  claims to the Local  and Central Government Ombudsman, complaints to the HealthCare Commission and Social Care Inspectorate, claims in negligence  and best interests declarations concerning the health and wellbeing of vulnerable adults.  She also advises frequently on the issue of continuing care.   She often advises on emergency issues and has experience of claims involving registration and deregistration of care homes/other institutions covered by the Care Standards Tribunal.  She works for both individuals and local authorities in this area.

Human Rights & Civil Liberties

Fiona regularly appears in the Administrative Court and the Court of Appeal on these issues.

Fiona undertakes training for national, regional and local organisations (both parental and local authority) on all aspects of this work.

Relevant Cases

Poplar Housing and Regeneration Community Association Ltd v Donoghue (2001) Times, 21 June
Fiona represented the defendants in a seminal housing case. The case concerned a house let on a periodic assured shorthold tenancy and whether possession proceedings breached Human Rights.

Inquiries & Inquests

Fiona acts for both claimants (including children and vulnerable adults) and local authorities within this area including judicial review proceedings, inquests, public inquiries, claims in negligence and advisory work in respect of the duties of local authorities.

Judicial Review

Fiona’s practice focuses on the review of local authority decisions relating to education, the treatment children with SEN Statements and human rights. She accepts instructions to assist with all stages and has achieved successful results for her clients.

Professional Discipline & Regulation

Fiona has been involved with the examination of the procedures and recommendations employed by school and local education authorities.