Claiming against disability discrimination in schools

This how to guide sets out the steps which can be taken to address disability discrimination in a school and specifically focuses on how to make a claim to the SEND tribunal. 

What is disability discrimination? 

Disability is considered a ‘protected characteristic’ under the Equality Act 2010. Therefore it is unlawful, in the context of education, for an education provider to discriminate directly or indirectly against a pupil on the basis of their disability.

Please view our information page titled ‘disability discrimination in education‘ to find out further information on what constitutes disability discrimination. 

Who can bring a claim of disability discrimination? 

In addition to the child’s birth parents, a parent includes anyone who has parental responsibility (which includes the local authority where it has a care order in respect of the child) and any person (for example, a foster carer) with whom the child lives.

Should I attempt mediation ?

Before making a claim to the Tribunal, you may want to consider mediation. Contact your Local Education Authority for details of mediation providers. 

If you are considering bringing a claim to the tribunal, please remember the time limit of bringing a claim is six months from the date of the incident, or if there has been a series of incidents, six months after the latest incident. Therefore if you do attempt mediation, ensure that you lodge an application with the tribunal within 6 months of the latest incident.

Which schools can the Tribunal hear claims about?

The tribunal can hear a parent or parents’ claims of disability discrimination in schools and academies in England. This includes: 

• Schools, nurseries and pupil referral units maintained by the Local Authority;
• Academies (including free schools);
• Independent schools
• Sixth Form Colleges

Please note that the tribunal cannot hear claims against private nurseries, unless they form part of a school, or against further education colleges. In addition, they cannot hear claims against organisations which are not schools even if they have hired or arranged to use a school’s premises.

Who do I bring a disability discrimination claim against?

The claim will be against the ‘responsible body’. The table below outlines the relevant responsible body according to the type of school in question. 

Type of school	Responsible body
Maintained school	Governing body
Pupil referral unit	Governing body
Maintained nursery	Governing body
Independent school/Academy	The owner
Non-maintained special school	The owner

What are the school’s duties not to discriminate?

Admissions 

A school must not discriminate because of disability:

• in the arrangements it makes for deciding who will get a place in the school including any rules it applies when the school is ‘oversubscribed’ (more people apply than there are places);
• in the terms on which pupils are offered a place at the school; and
• by refusing to accept an application because of disability.

The tribunal cannot hear a claim for a refusal to admit a pupil to a local authority or other state funded school (i.e. an academy or free school). This is because there are other appeal arrangements available to the parent, and these are available whether or not the child is disabled. The local authority or the school will provide the details of how to appeal in these cases.

The tribunal can hear a claim relating to admission to a private school.

The tribunal cannot hear a claim for failure to name a school in a pupil’s statement of special educational needs. However, you may be entitled to appeal to the tribunal against this decision.

Provision of education and access to a benefit, facility or service

A school must not discriminate in the education and services it provides for disabled pupils. This covers all aspects of school life and the teaching provided to pupils (but it does not include adult education that may take place on the school premises). It also includes what happens at lunchtime and other breaks, and activities such as after-school clubs, school trips or school orchestras.

Exclusions

A child should not be excluded, permanently or for a fixed term, because of a disability. This includes "informal exclusions".

The tribunal cannot accept claims relating to permanent exclusions from maintained schools or state-funded schools if they occurred on or before 31 August 2012. If your child has been permanently excluded from a school, it is important that any claim which might result in an order for reinstatement is heard quickly. The tribunal will apply an expedited timetable in such a case, so the decision can be reached in no more than six weeks.

How do I make a claim?

If you are the parent start a claim by submitting the Tribunal’s claim SEND4A form.  There is no fee for making an application and the Tribunal may be able to cover reasonable travel expenses for the hearing. You can list up to five witnesses who you want to attend the hearing.

The form asks you to explain what happened, how it is connected to disability, and why any action taken by the school was not justified. It is essential that you try to give details for each of the events and failures, including dates. The form must be signed by you or a qualified solicitor. If you are sending the claim form electronically, you or your representative can type your name where a signature is required. A representative who is not a qualified solicitor cannot sign the form on your behalf. You should send in photocopies of relevant documents. 

Section 1: The child

This section is asking for details of your child.

Section 2: Your contact details

This section is asking for your details and any representative that you may have.

Section 3: Details of who the claim is against

This is where you provide information about the school where the discrimination took place

Section 4: The date when the discrimination occurred

Section 5: Information about your claim

This section asks for information about your claim and the school or education setting involved. It is where you need to state what happened and why you are claiming. It is important to include:

• what happened, who was involved and when
• why what happened related to your child’s disability (or the disability of someone your child is associated with)
• how the school should have acted instead
• which documents are important

Section 6: Your child’s disability

This section is asking about your child’s disability and the effect it has on their ability to carry out day to day activities. If the claim relates to the disability of another person connected with your child, then details of that person need to be given. You need evidence of your child’s disability e.g. medical evidence or a professional diagnosis and any statement of SEN or Education, Health and Care Plan.

Section 7: Late claims

There is usually a strict 6 month time limit to bring a claim to the Tribunal. If you are making a claim outside of this time-limit then this section gives an opportunity to explain why the claim was not made within the time-limit and why it is important for the Tribunal to still hear the claim. If the claim is not being made late then you do not need to complete this section.

Section 8: Putting things right

This section is where you can state what you would like to happen if the tribunal decides that your child has been unlawfully discriminated against. You need to be clear about the remedy you are seeking from the Tribunal. The Tribunal cannot order a school to pay compensation and can only make orders against the responsible body (normally the governing body or proprietor) for a school, not against an individual.

Section 9: Documents you need to send with your claim

The form contains a list of possible documents you may need to submit to support your claim and a table for you to list the documents which you have submitted.

Section 10: Special requirements

This section is asking if you have any special requirements with regards to the claim documents and the hearing.

Section 11: Other appeal or claim

If you currently have another appeal or claim with the Tribunal then you should give information of this here.

Section 12: Signature

Please ensure that the form is signed before sending to the tribunal. If sending it as an electronic attachment you can type in your name (or your legally qualified representative can do so).

Section 13: Sending the claim

This section explains where your completed claim form needs to be sent.

 

If a young person over compulsory school age wishes to submit their own claim rather than having a parent do so on their behalf then they should use the SEND4B form.

A different form is needed if the disability discrimination relates to a matter where a child has been permanently excluded from school and the parent wishes for the child to be reinstated at that school; in such a situation then the correct form to use would be the SEND26A form. For fixed-term exclusions or permanent exclusions where the parent does not wish for the child to be reinstated at the school then the SEND4A form should still be used.

Time limits

There is a time limit for making a claim. The claim must be received by the tribunal within six months of the alleged discrimination. If the act or circumstances giving rise to the claim have continued for some time, or arise from certain specific circumstances, such as a contract, the claim must be received by the tribunal within six months of the most recent alleged act or omission. The tribunal has power to allow a late claim, but it will only do so if this is considered justified.

How long will the proceedings take?

Typically, claims take four to five months, unless there is an expedited hearing considering reinstatement following an exclusion. 

Once you file your claim, the responsible body has 30 working days within which to file its response (or 15 days in an expedited claim). You will be sent a case management timetable which will give you further details of when you can send other evidence and the deadlines for both parties. 

If the responsible body agrees with your claim and agrees to take action in respect of the discrimination, the tribunal will write asking if you wish to withdraw your claim. Alternatively, the tribunal can make a ‘consent order’ setting out the agreed outcome.

If the responsible body does not send a response by the end of the time allowed, your claim will be passed to a tribunal judge who will decide what action should be taken. This may include refusing to allow the responsible body to take any further part in the proceedings. If the responsible body has been barred from taking part in the proceedings, the tribunal judge will consider whether your claim can be decided on the basis of the papers or whether a hearing should take place without the responsible body.

There is no fee for making a claim to the tribunal. The tribunal can make a contribution towards out of pocket expenses in attending your hearing, such as travel costs. In certain circumstances, the tribunal may consider a claim by either you or the school against the other party for any costs incurred in the tribunal proceedings.

What can the Tribunal decide?

The decision of the Tribunal will be sent to you in writing 10 days after the hearing. The Tribunal can order the responsible body to do anything reasonable to put right the effects of the discrimination. The Tribunal cannot order compensation.

If the tribunal finds that a school has discriminated unlawfully against a disabled pupil it may order some or all of the following:

• Training of school staff
• Drawing up new guidance for staff
• Changes to school policies
• Extra tuition, to make up for lost learning
• Changing the location of lessons or activities (but not changing physical premises)
• Admission of your child to an independent school if the school had previously refused
• A written apology to your child
• Trips or other opportunities to make up for activities that your child may have missed and
• In cases of permanent exclusion, an order reinstating your child at the school

What if the responsible body does not follow the court order?

The tribunal will order the responsible body to take the action it specifies within a given time. The responsible body must then do so. If they do not, the tribunal has no powers of enforcement, but there are other steps you may take to enforce the tribunal’s order.

If there is failure to follow an order you should complain to the Secretary of State for Education on 0207 7925 5000.

You can also complain to the Local Government Ombudsman about any maladministration by Local Authorities.

Can I appeal against the decision?

You may make an application for appeal if you have been a party to the claim in the First-Tier Tribunal. This includes a parent, or person having parental responsibility and the responsible body.

However, the decision is not automatically challengeable therefore you would need to apply for permission to appeal.

How do I apply for permission to appeal?

An application can be made to the Tribunal for permission to appeal the decision if the decision is wrong in law. Examples where the Tribunal may be wrong in law include:

• The Tribunal did not apply the correct law or wrongly interpreted the law
• The Tribunal made a procedural error
• The Tribunal had no evidence, or not enough evidence, to support its decision
• The Tribunal did not give adequate reasons for its decision

This is not an exhaustive list. There may be other reasons why a decision of a Tribunal may be wrong in law.

Applications for permission to appeal and other applications available following a tribunal decision are explained in detail in the guidance that will be sent to you with your decision.

How do I apply to set aside the final decision?

An application can be made to set aside the decision or part of a decision, and for the Tribunal to remake this decision in the following circumstances:

• It is in the interests of justice to set aside the decision
• A document relating to the proceedings was not sent to the Tribunal at an appropriate time
• A party or party’s representative was not present at a hearing related to the proceedings, or
• There has been some other procedural irregularity in the proceedings

An application must be made so that it is received by the Tribunal no more than 28 days from the date on the letter which accompanies the decision.

If you apply later than 28 days you should request an extension of time, giving reasons why the application is late. If the tribunal does not agree to extend the time, your application will not be considered.

If you or the responsible body seek permission to appeal the Tribunal decision, the decision remains valid pending a decision on the application, unless it is stayed by the First-Tier Tribunal or Upper Tribunal.

Tribunal contact details

HM Courts & Tribunals Service
Special Educational Needs and Disability
Mowden Hall
Staindrop Road
Darlington DL3 9BG

Phone: 01325 392760
Fax: 01325 391080 or 01325 391310
Email: [email protected]

IPSEA (Independent Parental Special Education Advice) have a dedicated Tribunal helpline staffed by volunteers and you can book a call through following this link.