This is Part 2 of a series of blog posts on 'Disability Discrimination' and looks at the process for bringing a claim in the First Tier Tribunal SEND ("the SEND Tribunal") , and the powers the Tribunal has. To learn more about the specific types of disability discrimination, see Part 1.
A parent or carer, or a young person themselves if aged 16 or over, can make a claim in the SEND Tribunal against any school (including independent schools) or maintained nursery about allegations of disability discrimination. These might relate to exclusion (fixed term and/or permanent), the provision of education and associated services and/or the making of reasonable adjustments. Claims against private nurseries, local authorities and further education (Post-16) colleges have to be made in the county court.
Claims against schools relating to discrimination commonly focus on a failure to take the disability into account, often autism and/or Attention Deficit Hyperactivity Disorder ("ADHD") when applying behaviour policies and making decisions about when/whether to exclude. They also often reference alleged failures to make reasonable adjustments, i.e., providing an auxiliary aid or service for a disabled person (when it is reasonable to do so) to help alleviate any substantial disadvantage that the child or young person faces compared to their peers. Examples of this include relaxing uniform requirements, modifying homework expectations and more liberal use of toilet passes.
A claim of disability discrimination is made against the Responsible Body ("RB") of the school, not the Headteacher. In most cases this is likely to be the Governing Body of the school, but might in some cases be different, such as the trustees of an independent school. In practice it is not necessary to know exactly who it is as the Tribunal will identify the relevant status from the name of the school. It is however, necessary to be able to demonstrate both that the child/young person has a disability within the meaning of the Equality Act 2010, and to identify specific instances of the alleged discrimination.
Any claim to the SEND Tribunal must be made within six months of the alleged instance of discrimination. In the case of an ongoing failure to make reasonable adjustments the breach continues each day that the adjustment is not made. Disability Discrimination claims typically take a number of months to reach a final hearing depending on their nature and complexity and can take longer to register than appeals against Education Health and Care Plans because they are reviewed by Judges at an early stage. However, in cases of permanent exclusion where reinstatement to the school is being requested the timetable is a lot shorter.
Following a hearing, which is now held remotely via video, the Tribunal will provide their decision in writing (via email unless otherwise requested), usually within 10 working days. If the claim of disability discrimination is upheld, the Tribunal can order the RB to do take (reasonable) action to remove or prevent the discrimination. This can include:
A written apology
Increased training of school staff
A change in school policy and/or improved guidance
Provision of extra tuition to make up for lost learning
Reasonable adjustments to accomodate the student's disability
Admission to an independent school if previously refused on the basis of disability
Reinstatment in cases of permanent exclusion
Unlike disability discrimination claims in the county court, the SEND Tribunal does not have the power to award compensation, nor can it order physical alterations to school buildings or require the dismissal of a particular member of staff.
SEND Advocacy can advise and represent you/your young person in a claim for disability discrimination from start to finish. If you need someone in your corner to help you secure the education your child deserves, contact us today.
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