Worried about a child struggling in education and beyond? You are in the right place.

First Steps

First of all, if you have concerns about your child, talk to their school, GP, health professionals and gather information. Consider their needs and what support you think might help them access education. Start keeping records. Record who you spoke to, when, what advice they gave. This will help build up a picture of your child’s situation and will be vital if you need to apply for additional support, such as an EHCP.

For all SEND families who feel they need legal advice just to get started

• A child doesn’t need a diagnosis to be given extra help.
• You don’t have to wait for the school to apply for an EHCP, you can apply as a parent.
• The Equality Act 2010 requires schools to make “reasonable adjustments” to ensure that disabled pupils can fully participate in education.
• Laws affecting SEND children can easily be misunderstood. Get answers from reliable sources.

Why we talk about ‘The Law’ when a child is struggling in education

All children have a right to education protected in law. When children have additional needs then these needs and provisions to help them are covered in the Children and Families Act (2014) and the Equality Act (2010) which covers disability discrimination.

For a child to access additional help in education they either need an Education Health and Care plan (EHCP) OR/AND they can use the protections given to them under the Equality Act. We share free information in our ASK EXPERTS Q&A. Ask Experts allows you to search, follow and comment on specific questions, search this content: Noddy No-nonsense Guide and the Disability Law in Education Guide. In addition, you can visit our BOOKS section and download the guides in full.

Education and the law: routes to support

Understanding the Responsibilities of Schools Under the Equality Act 2010

Balancing Equality and Resources

Summary of the Case: SS v Proprietor of an Independent School [2024] UKUT 29 (AAC)

Overview:

• Parties Involved: The case involved the parents of a child, S, with disabilities (the appellants) and an independent school (the respondent). The child, S, was diagnosed with autism, ADHD, anxiety, and related conditions.
• Claims: The parents claimed that the school discriminated against S by:
  1. Permanently excluding her due to behaviours linked to her disabilities.
  2. Failing to make reasonable adjustments to help her.
  3. Denying her access to a therapy dog session near her birthday.

The case was appealed to the Upper Tribunal (UT) after the First-tier Tribunal (FtT) ruled against the parents.

Arguments from Both Sides:

Parents’ Viewpoint:

1. Unfair Exclusion: The parents argued that S was excluded unfairly, as her behaviour was caused by her disabilities.
2. Lack of Support: They said the school didn’t make enough adjustments, such as providing better staff training, a behaviour plan, or one-to-one teaching assistance.
3. Therapy Dog Session: Denying the therapy dog session caused S harm and amounted to discrimination.

School’s Reponse:

1. Safety Comes First: The school claimed the exclusion was necessary to protect other pupils and staff, as S’s behaviour included violence.
2. Reasonable Adjustments Were Made: The school argued it had already made reasonable adjustments, but its resources and role as a mainstream school limited what it could do.
3. Therapy Dog Session Was Not Essential: The school described the therapy dog session as a “treat” rather than a necessary adjustment for S’s disability.

The Upper Tribunal’s Decision:

The UT allowed part of the appeal, finding that the FtT made several mistakes in how it handled the case. Key claims were sent back for a new hearing.

Key Issues and Findings:

1. Equality Act 2010 vs. Children and Families Act 2014:

• The judge clarified that schools have two separate duties:
  1. Under the Equality Act (EA 2010): Schools must make “reasonable adjustments” to avoid putting disabled pupils at a disadvantage.
  2. Under the Children and Families Act (CFA 2014): Schools and local councils (LA’s) are responsible for delivering the support detailed in Education, Health and Care Plans (EHCPs).
• Key Point: A school’s duty to make adjustments doesn’t depend on whether the support is included in an EHCP. The FtT wrongly suggested that because S’s EHCP didn’t require the school to fund certain adjustments, the school wasn’t responsible.

2. Reasonable Adjustments in Mainstream and Special Schools:

• Mainstream schools, like the one in this case, aren’t usually expected to provide the same level of support as special schools – but this isn’t a hard and fast rule as the test in section 33 The Children and Families Act 2014 applies. However, they must still make reasonable adjustments to ensure disabled pupils aren’t disadvantaged.
• The FtT failed to properly examine whether adjustments like extra staff training, behaviour plans, and a full-time teaching assistant were reasonable.

3. Costs and Resources:

• The Law: While schools can consider costs when deciding what adjustments are reasonable, they cannot simply say, “We don’t have the budget.”
• The judge criticised the FtT for relying too heavily on the school’s resource limitations without thoroughly examining whether the adjustments were affordable or could have been made in other ways.

4. Permanent Exclusion:

• The FtT found that S’s violent behaviour (e.g., physical harm to a pupil and a teaching assistant) led to her exclusion, and this behaviour was linked to her disabilities.
• However, the judge said the FtT failed to:
  • Fully explore alternative options to exclusion.
  • Consider the impact of exclusion on S’s mental health.
  • Properly balance the school’s safety concerns against S’s rights under the Equality Act.

5. Therapy Dog Session:

• The parents claimed that denying S an extra therapy dog session (requested as a birthday treat) was unfair and linked to her disabilities.
• The FtT rejected this claim, reasoning that the session wasn’t essential for S’s needs.
• The UT said this approach was wrong. The issue wasn’t whether the session was “necessary” but whether denying it amounted to “unfavourable treatment” under the Equality Act. The UT sent this claim back for further review.

Key Guidance from the Judge:

1. Equality Act and Children and Families Act:

• Schools must follow the Equality Act, even if they believe the child’s needs are covered by an EHCP.
• A school cannot avoid its responsibilities under the Equality Act by arguing that the local council is responsible for EHCP provisions.

2. Reasonable Adjustments in Schools:

• Schools must:
  • Identify what policies or practices (called “provisions, criteria, or practices” or PCPs) disadvantage disabled pupils.
  • Assess how these PCPs affect the pupil compared to non-disabled pupils.
  • Consider reasonable ways to remove or reduce the disadvantage.

3. Costs and Resources:

• While costs and resources can be taken into account, they cannot justify failing to meet basic legal duties to disabled pupils.
• Schools must show clear evidence of how adjustments would negatively affect their finances or resources.

4. Mainstream vs. Special Schools:

• Mainstream schools are not expected to provide the level of adjustments found in special schools. However, they must still take reasonable steps to ensure disabled pupils can engage in education effectively.

What Happens Next?

• The claims about reasonable adjustments, the therapy dog session, and the exclusion decision will be reheard by a different tribunal.
• The new tribunal must consider the mistakes highlighted by the UT and follow the proper legal steps in deciding whether discrimination occurred.

Key Points Summary:

1. Discrimination: The school was accused of failing to make adjustments for S’s disabilities and unfairly excluding her.
2. Legal Frameworks: The Equality Act and the Children and Families Act set out separate but equally important duties for schools.
3. Costs: Schools cannot use financial limitations as an excuse to avoid making reasonable adjustments.
4. Mainstream Schools: Are still legally required to provide a fair and inclusive education.
5. Next Steps: Several claims, including those about adjustments and exclusion, will be reviewed again by a new tribunal.

This case highlights the balance schools must strike between their resources and their duty to provide equal opportunities for disabled pupils.

The decision can be found HERE

Sean Kennedy, barrister, Talem Law

30 November 2024

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