In the first article in this this two-part 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
Claims in the special educational needs and disability (SEND) tribunal are on the rise. Appeals of local authority EHC Plan decisions in the tribunal have hit the headlines recently. However, individual schools and academy trusts will not usually be directly involved in such appeals. It is rather the threat of parents bringing a disability claim in the SEND tribunal against the school or trust as the responsible body which can keep trustees, governors, heads and SENCos awake at night.
1. Involve parents in SEND provision from the outset
Building a good relationship at the early stages can be very helpful in keeping parents on side; and regular review meetings can avoid issues festering and becoming more difficult to resolve.
Schools put significant time and resources into meeting the parents of children with special educational needs and disabilities to discuss strategies for support and progress. It is very important to hold and record these meetings in a systematic way. Agreed actions should be noted in the minutes and followed up within set timeframes. Always ask parents if they have any concerns they would like to share, so that issues can be nipped in the bud where possible.
2. Have good systems to obtain medical and other useful information
Claims against schools and academy trusts often include accusations about poor communication and poor knowledge of the child’s needs. Equally, cases happen where parents have vast files of information from medical and other professionals which have never been shared with the school.
Having good systems to obtain information about a child from previous schools, from parents and from external agencies can help prevent problems further down the line. Asking parents for any documents which would be useful in understanding the child’s needs should be a regular feature of review meetings. Schools should consider including this question on review meeting forms to encourage staff to ask the question.
3. Invest in good IT or paper systems to keep SEND records
Put time and resources into getting the right system, and training people to use it consistently. We work with schools and academy trusts that have put enormous amounts of dedication and care into supporting children with SEND, but struggle to evidence all that work when it comes to defending a claim.
Deterring or defending a claim will be easier where records show those day-to-day interactions with the child and parents, the support strategies and contemporaneous evidence of whether these are working. Aim to keep reliable and systematic records of school/trust meetings, support plans, incidents, complaints, calls and meetings with parents, lesson observations and assessments, as well as medical letters, diagnoses and reports.
The security of all this useful information is also vitally important. Such records will be highly sensitive and a data security breach could lead to significant harm to the child or their parents, not to mention the risk of a complaint to the Information Commissioner’s Office. Keep paper documents under lock and key; encrypt / password protect electronic documents; send sensitive documents in the post only by special delivery; and train all staff on the vital importance of data security around school and at home.
4. Have a clear and useable complaints policy; and train staff in how it works
If you have a good internal complaints system in which parents and staff have confidence, it is possible to avoid some (though of course not all) SEND tribunal claims.
Having the complaints policy on the shelf will only be the first step. Practical training for staff on how the policy works will be essential in reducing the risk of claims. And that includes anyone who might receive a complaint in the first place. Teaching assistants, classroom teachers and pastoral managers all need to know what to do when complaints are received so that problems don’t fester. If parents get the impression that the school is ignoring or delaying dealing with issues internally, relationships are more likely to sour and the chance of a claim increases.
Keep a clear paper trail showing how any complaints were handled and how outcome decisions were made.
5. Remember that all documents are likely to be disclosable in tribunal or in a data subject access request
Although the ideal situation is always to try to prevent a claim, school staff need to be aware of the possibility that parents could take this action.
One of the first steps in the tribunal process after a claim is received is for the school to put together documentary evidence and share this with the parents and the tribunal. The rules on disclosure of documents in the tribunal mean that the school will have to share all documents which are relevant to the claim and which support or undermine the case of either party. It is very likely that every document relating to the child’s time at school and SEND will fall into this category. This includes handwritten notes, texts, photographs, video and WhatsApp messages. Physical evidence can also be relevant in some cases. Even covert audio recordings (for example of phone calls or meetings) are likely to be admitted as evidence in the tribunal.
The recent media attention on data subject access rights under the General Data Protection Regulation (GDPR) and new Data Protection Act has led to an increase in data subject access requests from parents on behalf of their children. These can be an early step in parents preparing for a SEND tribunal claim. Any documents (or parts of documents) which relate to the child will have to be disclosed. Exceptions to the right of access do apply, but these are very limited.
Schools can at times find that some documents which have to be shared are unfortunately less than helpful. The reality of day-to-day life in schools means that staff will sometimes say or commit to paper things which they later regret or would reword if they had the chance. It is vital that communications remain professional, neutral and balanced and that staff bear in mind that their words may at some stage come to be seen by the parents and child concerned. The tribunal will expect the names of children to be redacted from these documents, but otherwise, they will in most cases have to be shared in full.
Read now: Reducing the risk of a disability discrimination claim in the SEND tribunal (Part 2)
The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations.
