Special Educational Needs

Case studies: SEND Tribunals

We regularly represent clients defending disability discrimination claims in the SEND Tribunal. Such claims can arise from a variety of incidents including exclusion (permanent or fixed term), behaviour sanctions, or other types of alleged unfavourable treatment.

Fixed-term exclusion and other unfavourable treatment: We acted for a client defending a disability discrimination claim where the parent alleged that the child had been unfavourably treated on a number of grounds, including a fixed-term exclusion and being prevented from going on a class visit to a local landmark. The child had come from nursery with an EHCP and the school had put provision in place for their Reception year, including a well-planned handover from the nursery so as to facilitate a smooth transition to school. There were difficulties during the Reception year but when the child moved to Year 1 and the academic and behaviour expectations increased, their behaviour became increasingly more challenging towards staff and peers, and there were incidences where staff had to receive hospital treatment as a result of their injuries. The school had sought advice from external professionals including behaviour and autism specialists, as well as CAMHS, and had put in place all the strategies recommended. They had also liaised with the local authority regarding alternative (specialist) placements, and this was initially what the parent wanted. However, because the local authority had informed the parent that there were no places available for the child in a specialist setting the parent decided that they wanted to keep the pupil in mainstream, even though it was clear that the placement at that time with the support in place via the EHCP was not appropriate. The Tribunal recognised that the school had exhausted all avenues of support and had made reasonable adjustments in line with its obligations under the Equality Act. It found in favour of our client, concluding that there had been no unlawful discrimination on the grounds of the pupil’s disability, as the measures the school took were proportionate in light of needing to keep staff and pupils safe.

Fixed-term exclusion: This case involved a Year 4 child who did not have an EHCP. The parent alleged that he had been unfavourably treated by being excluded from school (on a fixed term basis) and that he had not been allowed to participate in swimming lessons. Our client, a mainstream primary school, had admitted the child to the school part way through Year 2 following the family’s move to the local area. It became apparent early on that the child required additional support, and the school put in place many interventions to support their learning and behaviour, including funding speech and language therapy and emotional literacy support from within the school’s own budget. The school commenced the EHCP application process but there was some disagreement among professionals as to whether the child had ASD or an attachment disorder. The child exhibited challenging behavior on a regular basis which had resulted in the whole class being evacuated several times. Our client had issued a number of fixed term exclusions over a period of 18 months, culminating in one lengthy fixed term exclusion which precipitated the parent’s claim. The school was able to demonstrate that it had made extensive reasonable adjustments, and sought support from other sources. The Tribunal found in favour of our client and determined that the exclusion was proportionate and, there had been no unlawful disability discrimination, noting that the school had put in place an extensive package of support and that it was difficult to think of anything else the school could have done.