QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| McA CATHOLIC HIGH SCHOOL
|- and -
|(1) CC (2) PC (3) SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Sarah-Jane Davies (instructed by Treasury Solicitor) for the Third Respondent
The first and second defendants were not represented
Crown Copyright ©
Mr Justice Silber:
II Statutory Framework
III The Background to the Application to the Tribunal
IV The Decision of the Tribunal
"The School is ordered to produce an Action Plan by half-term of the autumn term to deal with the specific needs of children on the autistic spectrum or who have communication difficulties to ensure that they are adequately supported on their transfer and admission to the School and on their transition into the next year group, with particular reference to the transition into year 8. Also that there is a mentoring scheme established and, wherever possible, that a buddy system is arranged for children who are socially isolated".
V The Grounds of Challenge
(a) Whether the Tribunal had jurisdiction to determine the complaint of the parents of IC ("Issue A - the Jurisdiction Issue")
(b) The characteristics of the comparator against whom IC had to be compared ("Issue B - the Comparator Issue")
(c) Whether the decision of the Tribunal is flawed because of the comments made by it on the exclusion issue in paragraph 3 of its Reasons ("Issue C - the Paragraph 3 Exclusion Issue")
(d) Whether the Tribunal was entitled to reach its decision that there was discrimination against IC because of the lack of personal guidance and support within the School's pastoral support system ("Issue D - the Pastoral Support Issue")
(e) Whether the Tribunal acted unfairly in failing to raise the issue of the lack of pastoral support with Mrs. Lawrence at the hearing ("Issue E - the Fairness Issue")
VI Issue A - the Jurisdiction Issue
"A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body .. not to reinstate a pupil who has been permanently excluded from the School maintained by the authority".
VII Issue B - the Comparator Issue
"1) The first matter to be considered in determining whether or not there has been unlawful discrimination against IC is to establish whether the less favourable treatment complained of is for a reason relating to the child's disability. This was denied by the School which put forward its case on the basis that firstly, there had been no less favourable treatment as a child without any disability but manifesting the same behaviour would have been excluded permanently from the outset
2) In light of the Code of Practice we do not consider this to be correct approach to the questions that have to be asked. The question of less favourable treatment has to be answered in comparison with the school population as a whole who have not misbehaved".
VIII Issue C - the Paragraph 3 Exclusion Issue
"As a matter of comment, it also seems rather disingenuous of the School to argue that they treated IC more favourably than a pupil without a disability as he was not excluded permanently, when in fact he was excluded for the maximum of 45 days and then not allowed to return to the School. We considered the duration of other fixed term exclusions from the School during 2002/3 and noted that the next longest was for 14 days for aggressive behaviour. Most were for less than five days and there were no permanent exclusions. IC would therefore appear to have treated less favourably therefore than other children whose behaviour has led to a fixed-term exclusion".
IX Issue D - The Pastoral Support Issue
X The Expert Evidence Issue
XI Issue - The Fairness Issue
MR JUSTICE SILBER: A copy of the draft judgment has been circulated. I have incorporated the comments made by the parties. The appeal will be dismissed.
Can I just mention one point about it: it is that I made an order that, in spite of what appears on the listing in the papers, that it is the name of the school, M School that can be disclosed, but not the name of the defendants which should be listed as CC and PC. You will see that the child who is referred to is referred to as IC.
So, if you can, when you report it, or if you do report it, bear that in mind. Copies of the judgment, if you want them, will be ready very shortly. It raises an important point about disability discrimination in schools.
It was also agreed by the parties that the appellant should pay the costs of the Special Educational Needs and Disability Tribunal, such costs being summarily assessed at £3,564.
28A Discrimination against disabled pupils and prospective pupils
(1) It is unlawful for the body responsible for a school to discriminate against a disabled person -
(a) in the arrangements it makes for determining admission to the school as a pupil;
(b) in the terms on which it offers to admit him to the school as a pupil; or
(c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil.
(2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.
(3) The Secretary of State may by regulations prescribe services which are, or services which are not, to be regarded for the purposes of subsection (2) as being -
(a) education; or
(b) an associated service.
(4) It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school, whether permanently or temporarily.
(5) The body responsible for a school is to be determined in accordance with Schedule 4A, and in the remaining provisions of this Chapter is referred to as the "responsible body".
28B Meaning of "discrimination"
(1) For the purposes of section 28A, a responsible body discriminates against a disabled person if -
(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it cannot show that the treatment in question is justified.
(2) For the purposes of section 28A, a responsible body also discriminates against a disabled person if -
(a) it fails, to his detriment, to comply with section 28C; and
(b) it cannot show that its failure to comply is justified.
(5) Subsections (6) to (8) apply in determining whether, for the purposes of this section -
(a) less favourable treatment of a person, or
(b) failure to comply with section 28C,
(6) Less favourable treatment of a person is justified if it is the result of a permitted form of selection.
(7) Otherwise, less favourable treatment, or a failure to comply with section 28C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial.
(8) If, in a case falling within subsection (1) -
(a) the responsible body is under a duty imposed by section 28C in relation to the disabled person, but
(b) it fails without justification to comply with that duty,
its treatment of that person cannot be justified under subsection (7) unless that treatment would have been justified even if it had complied with that duty.
28C Disabled pupils not to be substantially disadvantaged
(1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that -
(a) in relation to the arrangements it makes for determining the admission of pupils to the school, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and
(b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.
(2) That does not require the responsible body to -
(a) remove or alter a physical feature (for example, one arising from the design or construction of the school premises or the location of resources); or
(b) provide auxiliary aids or services.
(4) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a responsible body must have regard to any relevant provisions of a code of practice issued under section 53A.
(1) The Special Educational Needs Tribunal -
(a) is to continue to exist; but
(b) after the commencement date is to be known as the Special Educational Needs and Disability Tribunal.
(2) In this Chapter -
"the Tribunal" means the Special Educational Needs and Disability Tribunal, and
"the Welsh Tribunal" means the Special Educational Needs Tribunal for Wales.
28I Jurisdiction and powers of the Tribunal
(1) A claim that a responsible body -
(a) has discriminated against a person ("A") in a way which is made unlawful under this Chapter, or
(b) is by virtue of section 58 to be treated as having discriminated against a person ("A") in such a way,
may be made to the appropriate tribunal by A's parent.
(2) But this section does not apply to a claim to which section 28K or 28L applies.
(3) If the appropriate tribunal considers that a claim under subsection (1) is well founded -
(a) it may declare that A has been unlawfully discriminated against; and
(b) if it does so, it may make such order as it considers reasonable in all the circumstances of the case.
(4) The power conferred by subsection (3)(b) -
(a) may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person concerned of any matter to which the claim relates; but
(b) does not include power to order the payment of any sum by way of compensation.
(5) Subject to regulations under section 28J(8), the appropriate tribunal -
(a) for a claim against the responsible body for a school in England, is the Tribunal,
(1) If the condition mentioned in subsection (2) is satisfied, this section applies to a claim in relation to an exclusion decision that a responsible body -
(a) has discriminated against a person ("A") in a way which is made unlawful under this Chapter; or
(2) The condition is that arrangements ("appeal arrangements") have been made -
(a) under section 52(3)(c) of the Education Act 2002, or
enabling an appeal to be made against the decision by A or by his parent.
(3) The claim must be made under the appeal arrangements.
(4) The body hearing the claim has the powers which it has in relation to an appeal under the appeal arrangements.
(5) "Exclusion decision" means -
(a) a decision of a kind mentioned in section 52(3)(c) of the Education Act 2002;
(6) "Responsible body", in relation to a maintained school, includes the discipline committee of the governing body if that committee is required to be established as a result of regulations made under section 19 of the Education Act 2002.
(7) "Maintained school" has the meaning given in section 28Q(5).
52 Exclusion of pupils
(1) The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently.
(2) The teacher in charge of a pupil referral unit may exclude a pupil from the unit for a fixed period or permanently.
(3) Regulations shall make provision -
(a) requiring prescribed persons to be given prescribed information relating to any exclusion under subsection (1) or (2),
(b) requiring the responsible body, in prescribed cases, to consider whether the pupil should be reinstated,
(c) requiring the local education authority to make arrangements for enabling a prescribed person to appeal, in any prescribed case, to a panel constituted in accordance with the regulations against any decision of the responsible body not to reinstate a pupil, and
(d) as to the procedure on appeals.
(5) In subsection (3), 'the responsible body' means -
(a) in relation to exclusion from a maintained school, the governing body of the school, and
(10) In this section 'exclude', in relation to the exclusion of a child from a school or pupil referral unit, means exclude on disciplinary grounds (and 'exclusion' shall be construed accordingly).
6 Appeals against permanent exclusion of pupils
(1) A local education authority shall make arrangements for enabling the relevant person to appeal against any decision of the governing body under regulation 5 not to reinstate a pupil who has been permanently excluded from a school maintained by the authority.