WHAT CAN I DO IF MY CHILD IS BEING DISCRIMINATED AGAINST IN EDUCATION BECAUSE OF A DISABILITY?

This Factsheet is one of a range of FREE Factsheets on Education, Disability and Public Law issues that we have written for parents who are seeking specialist help. In it we have provided basic but relevant information on the issue identified as well as information about what we do and how we may be able to help. We would be very grateful if you would not photocopy or copy it electronically but ask other people who you feel may find it helpful to download it directly from our website at www.specialeducationalneeds.co.uk

INTRODUCTION

The Department for Work and Pensions estimated a few years ago that there were over 10 million disabled people in Britain, including people with limiting longstanding illnesses, of which 4.6 million over State Pension Age and 700,000 are children. Across the UK, a child is diagnosed with a severe disability every 25 minutes (see ‘Contact a Family’ website).

There are two main ways of understanding disability. The first is the ‘medical model’ which focuses upon people’s health difficulties or impairments. This inevitably emphasises their difficulties in a negative way. Then there is the ‘social model’ which underlines the fact that most of the problems faced by disabled people are because society has set ideas about what disabled can and should do and how they should behave.

On 1 September 2002 the Special Educational Needs and Disability Act 2001 (“SENDA”) amended the Disability Discrimination Act 1995 to make it possible for the first time for claims of Disability Discrimination against a child in education to be taken against schools or LEA’s. Claims must be made to the Special Education Needs and Disability Tribunal (“SEND”).

Claims can be made in relation to admission arrangements; education and associated services provided by schools or fixed term exclusions from schools. Admission decisions or permanent exclusions from Maintained Schools (i.e. “State” Schools) must be challenged through appeals made to the pre-existing Independent Appeal Panels set up by LEA’s. All other claims about schools must be brought to the SEND Tribunal including about nursery schools and nursery classes in schools.

WHAT IS DISCRIMINATION?

The main principle of non-discrimination is that schools and LEA’s must not treat disabled pupils less favourably because of their disability without justification. They may also be required to make reasonable adjustments so that the disabled pupils are not disadvantaged compared with pupils who are not disabled. However, in making these adjustments they will not have to remove or alter physical features or provide extra aids and services.

This may be because children who have these kinds of needs will normally have a Statement of Special Educational Needs where this has been set out as Special Educational Provision.

WHO CAN I CLAIM AGAINST AND HOW?

Claims have to be made against a “responsible body”. Who this is will depend on the circumstances of the claim. The responsible body may be the school itself or a Local Educational Authority if the school is a Maintained School (including Community Schools, Voluntary Aided/Controlled Schools or Foundation Schools). The “responsible body” is the organisation which is responsible for the school. Therefore claims cannot be taken against a Headteacher or an individual person although they can still be taken against Independent (i.e. Private) or Non-Maintained Schools. It may take some investigation to find out who the “responsible body” for certain aspects of school life is. For example, in relation to school meals or school transport it may be the school, the LEA or both.

Claims have to be made within six months from when the alleged discrimination took place.

If the claim is referred to the Equality and Human Rights Commission (this was previously known as the Disability Rights Conciliation Service, but merged with the Commission for Racial Equality and Equal Opportunities Commission to form the Equality and Human Rights Commission in 2007) within six months of the alleged discrimination you will also have another two months to claim.

The Commission is an independent free service that will try and help you sort out your disagreement and itis useful to see if things can be sorted out with the school beforehand. You can connect the Commission through their Helpline on 08456 046610. Using the Commission will not affect any claim as it is a voluntary process. What is said in these meetings cannot be quoted in the Tribunal unless both parties agree. The Commission will not tell you whether you should claim but only how to claim.

ADMISSIONS ARRANGEMENTS AND EDUCATION & ASSOCIATED SERVICES/ EXCLUSIONS

“Admissions” arrangements cover discriminatory behaviour by responsible bodies:

• In the way that they decide who will get a place in schools (including where schools “are oversubscribed”);
• In the terms in which they offer pupils a place at the school; or
• By refusing to accept, or deliberately not accepting, an application from a disabled pupil for admission.

“Education and associated services” covers both the teaching provided by teachers and services through other school staff. This includes what happens at lunchtime, at other breaks and at activities such as after school clubs, school trips and school orchestras. It does not cover any adult education provided in schools or services to parents.

“Exclusions” relates to discriminatory behaviour against a disabled pupil by excluding them from the school because of their disability. This covers permanent or fixed term exclusions and includes lunchtime exclusions.

It is important to note that although schools and LEA’s must now also have plans and strategies to make school premises more accessible to disabled pupils, claims cannot be brought about through their failure to do so. This is because Ofsted and the Secretary of State of Education & Skills are responsible for making sure that schools carry out these duties.

DEFINITION OF DISABILITY

The first stage is to establish that the child is “disabled”. This has a particular definition set out by the Disability Discrimination Act 1995 (“DDA”) and updated case law. A “disability” is defined as a physical or mental difficulty which has a substantial and harmful long term effect on a pupil’s ability to carry out normal day to day activities. “Substantial” means more than minor or trivial and “long term” means that the effect of the condition must have lasted, or be likely to last, for a year or for the rest of the life of the child. “Day to day activities” are listed within the DDA and are mainly related to activities that ordinary pupils can carry out rather than someone with a specialised skill or ability.

If the responsible body does not agree that your child is disabled you may need to provide medical or other evidence to support this. The Tribunal may need to consider whether the child is disabled before they can consider whether there has been any discrimination. Sometimes the Tribunal will hold a special hearing beforehand in order to make a decision on this point.

Some related conditions are not covered by the definition of “disability”. This includes children who wear glasses or who have hay fever or (other temporary conditions). Furthermore, pupils who have emotional and behavioural difficulties will only be defined as “disabled” if these difficulties arise from a clinically (i.e. medically) well recognised condition. What is important to note that a pupil with a “disability” does not automatically have Special Educational Needs and that a pupil with Special Educational Needs is not automatically considered to be “disabled”. However, a child who is not disabled but who is a victimised for supporting a disabled pupil (or where the parents have supported a claim concerning a disabled pupil) may also be able to claim Disability Discrimination.

JUSTIFICATION & REASONABLE ADJUSTMENTS

A responsible body can discriminate against the pupil if the discrimination is justified. “Justification” for discrimination may include: the cost and practicality of making “reasonable adjustments”; health and safety issues; and any effect of non-discrimination on other children.

Where a disabled pupil is refused admission to a school the less favourable treatment can be justified if it is as a result of a “permitted form of selection” (i.e. a lawful system for choosing pupils) but in all cases any discrimination will only be justified if there is a good reason.

“Reasonable Adjustments” mean that Schools must take reasonable steps to make sure that the disabled pupils (including children who are not yet at the school but who might join the school in the future) are not “substantially disadvantaged” compared with other pupils.

WHO DO YOU MAKE A CLAIM TO?

To make a claim, parents have to complete a Disability Discrimination Claim Form which can be obtained through the Tribunal Helpline on: 08702 412555 or which can be found at their website: www.sendist.gov.uk.

The claim form is contained within the booklet entitled “How To Make A Claim” which also provides useful information.

In the claim form you must explain clearly what has happened. There should be no need for any further documents to accompany it unless it could help the responsible body understand and respond to your claim. If insufficient information is provided the Tribunal will give parents ten working days (i.e. two weeks) to provide any further information. If there is sufficient information the Tribunal will register the claim and send a copy to the responsible body. Only parents can sign the claim form.

WHAT HAPPENS DURING THE CLAIM?

The Tribunal hearing of a claim should be heard within about four to five months (five to six months if August is included) from the date that the claim was lodged. The Responsible Body will be provided with 30 working days (i.e. 6 weeks) to respond to the appeal, either agreeing to it or setting out detailed reasons for opposing it. They must send a copy of their response and any accompanying documents both to the Tribunal and the parents (or their representative). The responsible body will also be required to submit a completed Further Information form.

The next step is known as case management process. Each appeal will be ‘case managed’ following registration to ensure the parents, the responsible body and the Tribunal have all the information necessary for them to reach a decision on the day of the hearing.

The case management hearing (either on paper or in person) should take place by week 10 after registration (i.e. four weeks after the Responsible Body has served its reply). Often it will be sufficient for a representative to deal with everything at a case management hearing by a Request for Directions Form which sets out check boxes which they can take to request directions. The form will also need to be sent to the other party. It may also be necessary to request directions as outlined above or to seek witness summonses for relevant witnesses.

FURTHER EVIDENCE

The purpose of the case management stage is to allow for there to be directions requested by and then given to both parties to allow for further evidence to be provided, such as reports from experts and other educational or medical professionals.

Any further evidence allowed for by a direction at a case management hearing will usually need to be lodged with the Tribunal and served on the other party no later than week 16 (i.e. four weeks before a hearing). The Tribunal also states that where it will still not be possible to lodge and serve evidence until after that date, for some exceptional reason, a direction will need to be requested and made to provide for this to be able to happen.

BUNDLES

At week 16 the Tribunal should have all the documents it needs before it and theoretically the Tribunal itself should put together a bundle and send a copy to both parties for use at the hearing by week 17.

Previously, bundles were extremely bulky and sometimes had two copies of documents or reports because they had been lodged by both parties. However, the Tribunal now aims to produce a more ‘streamlined’ bundle. The Tribunal will also prepare the bundle in chronological order wherever possible.

THE TRIBUNAL HEARING

The hearing of the claim should take place 20 weeks after it has been registered although if there are good reasons why a party or witness cannot attend on that day the hearing can be relisted after a formal request to the Tribunal.

Hearings will be held throughout the country at various Tribunal Services buildings and sometimes, in special circumstances, may be held in a local hotel. However, they will always try to be held as close to where the parties live and aiming to limit travel to no more than 1½ hours each direction (2 hours in Central London).

The hearing will be fixed for a certain time, usually starting at 10.00am or 2.00pm and the Tribunal advises parties to arrive at least 30 minutes before the hearing so that they can meet the clerk and familiarise themselves with the arrangements or ask any questions that they may have. The length of the hearing will depend on what is being appealed about and the number of witnesses attending and should last for a half day or full day depending on the complexity of the case.

The hearing will take as long as it is necessary to hear all the evidence relating to the claim and sometimes it may also be necessary to adjourn the hearing to continue on another day if it is unable to be completed within a day.

It is said that parents will normally be required to attend hearings in person but they may sometimes only choose to send a representative (and also witnesses) although this is not as helpful as having them there as well. It is doubtful whether this will ever happen, but in very exceptional circumstances a parent who is not party to a claim may attend the hearing although the parent bringing the claim may request that the other parent has limited involvement in the case.

When parents arrive at the hearing venue they will be greeted by the Tribunal Clerk who should ensure that they are aware of what will happen during the Tribunal. They will able to also speak with their witnesses and/or representative and will normally be sat separately from the responsible body’s representative and witnesses.

When the hearing is due to start, the parties will be led into the hearing room where there will be a large table with the Tribunal panel on the other side with the Judge in the middle and the two members sitting either side of him or her. Although the members will have knowledge and experience of disability the parties will not be told what they actually do.

A hearing in normally held in private, but only in exceptional circumstances where both the parents and the responsible body have requested it be open to the public, will it be held in public if the Tribunal agrees.

The Tribunal hearing, although carried out in a formal setting, is meant to be conducted as informally as possible. The issues to be discussed should be identified at the start of the hearing (which should be the same as the ones already agreed between the parties in the pre-hearing process).

There will then be an opportunity for everyone to speak or answer questions and for the parties to ‘cross-examine’ each other through their representatives or witnesses. In addition the Tribunal Panel will also ask question of the parties or their witnesses. The procedure of the hearing will be administered by the Judge.

The Tribunal Panel will want to find from the parties what they feel the relevant facts are, what conclusions they think the Tribunal should come to and what they think should now be done for the child. The Tribunal Judge should try and make the proceedings as straight forward as possible so that everyone is able to give their point of view and the Panel should ask questions that they have without using legal or educational jargon. This means that if a question is not clear any person in attendance can ask them to explain what they mean before they answer. Every hearing will be different but usually the Tribunal will sit for about an hour and a half before taking a short break or a lunch break if the hearing goes on all day. The Tribunal Panel will have already read the Tribunal bundle and all the written evidence that has been provided by either party and will only seek oral evidence, where necessary, to clarify issues.

Hopefully this will allow for the hearing to proceed smoothly and for everybody to say what they want to so by the end of the hearing, the panel can ask for any closing submissions to be made by, usually, the responsible body’s representative first and then the parent and/or their representative.

A closing submission is normally meant to be a summary of that party’s case but there may be detailed legal arguments by parties, particularly if the parties are represented by a lawyer. This is because there is now an extensive body of case law concerning Tribunal appeals which has been decided by the High Court, Court of Appeal and even House of Lords concerning a wide range of disability issues. At the end of the hearing the Judge will thank everybody for attending and explain that the panel will now retire to consider their decision either immediately or at another meeting in the next few days. They will only exceptionally give a decision about an issue at the end of the hearing itself. After coming out of the hearing room, the Tribunal Clerk will ensure that the parties and their witnesses have the correct expenses form to complete in relation to travel expenses, which will usually be by reimbursement of bus and standard class rail travel or a fixed amount for mileage if parties have to travel by car.

Witnesses will also be paid a fixed amount for loss of earnings (similar to those paid for jury service) although professional witness should have already agreed their fees with the parents beforehand. The Guide for Parents provides more detailed information about the expenses that can be claimed.

THE DECISION

Following completion of the hearing the Tribunal panel will then deliberate as soon as possible afterwards and subsequently issue a written decision, usually within 10 working days of the hearing setting out a record of the evidence which the Tribunal h as heard and their decided conclusions with reasons. If previously requested the decision be translated into another language or Braille although this may delay receipt of the decision.

The decision will identify the names of the Tribunal Panel members hearing the claim but will not indicate how they voted or whether the decision was a unanimous one.

HOW LONG DOES THE RESPONSIBLE BODY HAVE TO COMPLY WITH THE TRIBUNALS DECISION?

The responsible body will be given a timescale in which to carry out the Order of the Tribunal. In their decision the Tribunal will state first whether the child has been discriminated against because of their disability and can order the responsible body to do anything reasonable to put right the discrimination but this does not include paying financial compensation.

The type of things the Tribunal may order would be to help make up for any opportunities your child has missed or to prevent discrimination against disabled pupils in the future and include things like:

• Training for school staff
• Drawing up new guidance for staff
• Changes to school or LEA polices
• Extra tuition, to make up for lost learning
• Relocating facilities (but not changing physical premises)
• Admitting the child to an Independent School if the school has previously refused
• Giving a written apology to a child
• Providing trips or other opportunities to make up for activities that the child may have missed

If the responsible body does not carry out the Tribunal’s decision properly a complaint can be made to the Secretary Of State at the Department for Education & Skills (DfES) (or the national Assembly for Wales) who will consider what action can be taken (see Fact Sheet 10 on “What is a Complaint to the Secretary of State/Local Government Ombudsman?”). There may also be grounds for challenging the responsible body by the way of a Judicial Review for which you should seek a specialist solicitor’s advice at the earliest opportunity (see Fact Sheet 9 on “What is a Judicial Review?”)

It is not normal for the unsuccessful party to have to pay the successful party’s costs but in rare circumstances, if a party has been unreasonable or deliberately wasted the Tribunal’s time, they may be ordered to pay the others costs.

If parents are also bringing an appeal to the Special Educational Needs & Disability Tribunal in relation to a child’s Special Educational Needs Provision (see Fact Sheet 3 on “What is a SEND Tribunal Appeal?”) it may be possible for there to be a single hearing by the Tribunal to deal with both matters. However, both an appeal form and a claim form must be completed and you must indicate on the forms that you wish to bring the matters together at the one hearing. Whether this is done will depend on the circumstances.

Douglas Silas Solicitors are a small, niche but nationally acclaimed firm of solicitors specialising exclusively in Education, Disability, and Public Law, particularly in cases concerning Special Educational Needs (SEN) and Disability Discrimination (DDA). If you want to discuss a problem with us please Contact Us directly as soon as possible or Make an Enquiry right away online.

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