As more children and young people with complex needs and disabilities attend mainstream settings, it is inevitable that issues of discrimination are likely to arise. The Equality Act protects those with a disability from being treated less favourably by schools and that includes maintained schools, academies, free schools and independent schools.
It is important to bear in mind that discrimination does not need to be deliberate or wilful and can occur in the following circumstances:
- A child with a disability being excluded from school without reasonable adjustments being made to meet their needs;
- A child being prevented from attending a school trip because of their disability and being treated less favourably than other children; and
- A child being denied admission to school because the school perceives that it cannot cater for their disability.
It is not sufficient for schools to say that they were not aware that a child had a disability, they need to take positive steps to support and identify children who are presenting with long term difficulties, which may fall within the definition of a disability.
Where a child is the victim of discriminatory treatment parents have the right to bring a claim before the Special Educational Needs and Disability Tribunal (SENDIST). This is a specialist and independent Tribunal which sits within HM Court Service and is tasked with deciding disputes in this area. Claims are brought against the Responsible Body for the School, which may be the Governing Body or in the case of an independent school, the proprietor.
What to expect
The disability discrimination tribunal process can be gruelling for parents and the process can take up to 20 weeks from lodging the claim. On lodging the claim, the Tribunal will fix a hearing date and issue case directions for the disclosure of evidence by both parties.
Claims will be heard across the country in local venues and hearings will last one day. All Tribunal hearings are managed by a specialist Judge who is legally qualified and they will be assisted by two specialist panel members. They have experience in disability related issues and are there to assist the Judge in reaching a decision.
It is important to bear in mind that the Tribunal is a legal proceeding, albeit more informal, and when bringing claims you will need to ensure that you have the evidence to support your claims that the school has discriminated against your child.
Remedies Available
No financial compensation is available in the SENDIST where a claim of discrimination is found. Sanctions which may be awarded include:
- The responsible body being ordered to apologise for the discriminatory treatment
- The responsible body being ordered to under Equality Act training
However, where a discrimination claim is upheld, it could be sent to Ofsted to highlight failings within the school which may need to be investigated. There have been cases where schools have been closed by Ofsted and the trigger has been a finding of discrimination which has uncovered serious malpractice within the school (see the closure of Standbridge Earls, an independent school.)
What will all this cost me?
We can assist you in gathering all of the evidence that you will require to bring a claim. The costs of a claim will vary depending on the complexity but the costs of representation and obtaining professional evidence can cost up to £10,000.
Unfortunately, costs are not recoverable from the "losing" party unless they have been shown to have acted unreasonably in responding to the appeal. Therefore, pursuing a claim is an expensive financial commitment. On the flip slide, parents who engage legal representation will do so because they may be securing a change in culture at their child's schools and bringing to the public domain the discriminatory treatment that has taken place.
We can provide you with an initial estimate of costs when you contact us so that you can decide whether legal support is affordable. We are able to reduce our fees by offering fixed fees and low hourly rates.
