In the second and final part of this series, Alacoque Marvin, former teacher and now member of Wrigleys Solicitors’ education team, considers how to avoid (or at least be prepared for) a SEND tribunal disability discrimination claim.
This is the second in a two-part series. Read the first part here.
6. Understand the definition of disability
Remember that children without an EHC Plan or obvious medical condition can also be disabled for the purposes of the Equality Act 2010 (the Act).
A disability is defined as a mental or physical impairment which has a long-term, substantial, adverse impact on someone’s ability to carry out normal day-to-day activities. There is no need for a child to have a medical diagnosis or a particular condition; schools should not make assumptions about whether particular conditions are or are not disabilities. The focus is on how the impairment impacts on the individual child. Key questions include whether the impairment has lasted or will last for 12 months and whether it hinders the child in doing everyday tasks.
Where a child is disabled under the Act, the school will have a duty to make reasonable adjustments to its policies (including its behaviour policy) and practices if these put the child at a disadvantage compared to children who do not share their disability.
There is also a risk of a claim for discrimination arising from disability where the child has been treated unfavourably because of something connected to their disability. For example, if a child is excluded because of behaviour which can be shown to be connected to their condition.
7. Take legal advice, particularly before excluding a child with SEND
The decision to exclude a child with SEND will usually come at the end of a long and intensive process of trying to provide support which is aimed at improving the child’s educational progress, social interaction, emotional wellbeing and behaviour. Schools are very aware that this is not a decision to take lightly. Maintained schools, pupil referral units and academies should refer to the statutory guidance on exclusions as well as their own behaviour, exclusion and SEND policies before making a decision to exclude. Independent schools should consider these policies along with the contract they have with the parents.
Tribunals will often point out to schools that the statutory guidance makes clear that exclusion (whether fixed term or permanent) should be used only as a last resort. The tribunal is likely to expect to see strong documentary evidence that multiple strategies have been tried and that these have not had the desired impact. Tribunals can also criticise schools for not waiting long enough to assess the impact of new strategies.
Behaviour policies which impose exclusion once a child has reached a certain number of demerits (or similar) are also likely to be criticised by the tribunal. Blanket policies which do not require careful consideration of the child’s particular SEND before making an exclusion decision should be avoided as these are likely to be indirectly discriminatory and a failure to make reasonable adjustments.
8. Think about using an external mediator to resolve issues which could lead to a claim
At the end of an internal complaints process or exclusion appeal, relationships between schools and parents can be very strained and views entrenched. Bringing in an outside eye to mediate between the parents and school can be a cost-effective move. A mediator will not impose a solution on the parties, but they can sometimes encourage both sides to find their own alternative and creative ways of resolving the issue.
9. Are you insured?
The SEND tribunal does not offer financial compensation and cannot order that a school puts in particular support for a child if the responsible body loses a disability discrimination claim. The tribunal can order that a school or academy trust apologise for its failings. It can order that training be undertaken or policies / practices reviewed within a certain timeframe. If a decision to exclude is found to be discriminatory, it can order reinstatement of the child at the school.
The legal costs of defending a SEND claim can be significant and might in some cases be in the region of £20,000 plus VAT. Schools and academy trusts should check whether they have legal expenses insurance which includes cover for SEND tribunal claims. If they do, it is important to notify the insurers that a claim is possible or likely to be brought. This might be when a formal complaint is received or before a permanent exclusion decision is made.
10. Think about settlement
There will always be some cases in which it is in the best interests of the school or academy trust to defend the claim all the way through to the tribunal hearing.
In other cases, it will be worth exploring the option of settlement to avoid the reputational risks, costs, emotional strain and significant pressure on time and resources which a full tribunal process can entail. The headteacher and SENCo (and in some cases teaching assistants, year heads and class teachers) are very likely to have to spend hours preparing documents and witness statements as well as going through the experience of giving live evidence to the tribunal.
It is sometimes the case that parents are unsure about the orders the tribunal can make. They may say they want particular staff members to be removed from the school. They may believe that financial compensation is available. It can be worthwhile for the school’s representative to approach parents or their representative off the record to discuss what they are hoping to achieve. In some cases, a school may be able to agree the wording of an apology letter and/or agree to undertake a review of policies and practices at the school.
This is the second in a two-part series. Read the first part here.
The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations.
