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Discrimination – tendency to physical abuse

January 25th, 2015 by Rachel Kamm

A three-judge Upper Tribunal panel X v GB of a school has considered the exclusion of a tendency to physical abuse from the definition of disability under the Equality Act 2010.

The child, S, was given six fixed term exclusions of up to four days because of incidents when S was violent to other children. She brought a disability discrimination claim in the First-tier Tribunal, including a claim that the fixed term exclusions constituted discrimination arising from her disability. Her claim was unsuccessful. The Tribunal found that she was a disabled (by reason of autism) and that she had a tendency to physically abuse others that was a result of her autism. Regulation 4 of the Equality Act 2010 (Disability) Regulations 2010 provides that a tendency to physical abuse of other persons is to be treated as not amounting to an impairment for the purpose of the Equality Act 2010. The Tribunal concluded that it followed that she had not been treated less favourably because of something arising in consequence of her disability.

S appealed to the Upper Tribunal. The UT found that regulation 4(1) applied to children as well as to adults. It went on to agree with the approach of Lloyd Jones J in Governing Body of X Endowed Primary  School v SENDIST  [2009] EWHC 1842 (Admin) (and of the EAT in Edmund Nuttall Ltd v Butterfield [2006] ICR 77) that “having regard to the words of the statute, its scheme and its legislative purpose, the effect of the provisions read together is that the protection of the legislation is not intended to extend to the excluded conditions, whether or not they are manifestations of an underlying protected impairment.” It follows that a school will not breach section 15 of the Equality Act 2010 if they treat a child less favourably because of the child’s tendency to physical abuse of others, even if that tendency arises as a result of a disability (such as, in this case, an autistic spectrum disorder).

Note that the guidance at [114-121] on what a “tendency to physical abuse” means suggests a higher threshold than merely physical violence. This is worth reading in full, but the UT found that there must always be an element of violent conduct (but that this alone is not sufficient), there is no requirement for knowledge on the part of the perpetrator that what they are doing is wrong, the existence of some sort of misuse of power or coercion makes it more likely that the test is met, the stage of a child’s development is relevant, and it is not necessary for the tendency to physical abuse to manifest itself regularly or frequently. The UT’s concluding summary was that “a tribunal must approach its consideration of whether a person has “a tendency to physical … abuse of other persons” by reaching conclusions on the evidence, and then explaining why the undisputed facts and those it has  found lead to its conclusion, having taken into account all the circumstances of the case including, where relevant, the matters set out above. In so ruling we are conscious that what may be a challenging task for a First-tier Tribunal of determining whether regulation 4(1)(c) is met may be yet harder for those in a busy school. However, that, in our judgment, flows from the legislative choice of a more complex concept such as “physical abuse” rather than, for instance, “violence” or “assault.”

Applying its conclusions on the law to the facts of S’s case, the UT found that the First-tier Tribunal had erred in law in failing to make sufficiently specific findings of fact about any tendency to physical abuse. The UT concluded that S’s behaviour manifested a condition of a tendency to physical abuse of other persons. Therefore S’s appeal did not succeed.

Clive Sheldon QC and James Cornwell of 11KBW represented the Governing Body.

Rachel Kamm 

New exclusions guidance

January 18th, 2015 by Rachel Kamm

The Government has published new statutory guidance: Exclusion from maintained schools, academies and pupil referral units in England. It applies to exclusions that occur after 5 January 2015, replacing the previous 2012 guidance.

One reason for the amended guidance is that there has been a change to the regulations governing exclusions. The Education (Provision of Full-Time Education for Excluded Pupils) (England) (Amendment) Regulations 2014 were laid before Parliament on 5 December 2014 and came into force on 5 January 2015. The explanatory note explains that  these regulations amend the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 so  that consecutive periods of exclusion are considered as one continuous period for the purposes of making arrangements for the provision of suitable full-time education for a pupil of compulsory school age who is excluded for a fixed period on disciplinary grounds.

The statutory guidance summarises the other main points as follows:

  • Statutory guidance has been updated in a small number of areas, in particular to provide greater confidence to headteachers on their use of exclusion and greater clarity to independent review panels and governing bodies on their consideration of exclusion decisions.
  • Good discipline in schools is essential to ensure that all pupils can benefit from the opportunities provided by education. The government supports the decisions of headteachers and they should be confident in using exclusion where they consider it to be a lawful, reasonable and fair action.
  • In considering whether to exclude a pupil, headteachers should weigh up the seriousness, or persistence, of the pupil’s behaviour, together with the impact of not excluding the pupil on the school as a whole and the integrity of its behaviour policy. Whilst every effort should be made to identify pupils at risk of exclusion, and to put in place strategies to address problematic behaviour, adopting a blanket approach of never excluding pupils may undermine the school’s ability to maintain discipline.
  • Where a school has concerns about a pupil’s behaviour it should try to identify whether there are any causal factors and intervene early in order to reduce the need for a subsequent exclusion. In this situation schools should consider requesting a multi-agency assessment that goes beyond the pupil’s educational needs. They should also consider whether alternative provision would help improve the pupil’s behaviour.
  • Schools must not discriminate against pupils on the basis of protected characteristics, such as gender, sexual orientation, disability or race. All pupils must be treated fairly and lawfully.
  • All children have a right to an education. Schools should take reasonable steps to set and mark work for pupils during the first five school days of an exclusion, and alternative provision must be arranged from the sixth day. There are benefits in arranging alternative provision to begin as soon as possible after an exclusion. Schools should have a strategy for reintegrating pupils that return to school following a fixed period exclusion, and for managing their future behaviour.
  • Where parents (or the excluded pupil, if aged 18 or over) dispute the decision not to reinstate a permanently excluded pupil, they can ask for it to be reviewed by an independent review panel. Where there is an allegation of discrimination (under the Equality Act 2010) in relation to a fixed-period or permanent exclusion, parents can also make a claim to the First-tier Tribunal (for disability discrimination) or  a County Court (for other forms of discrimination).
  • Excluded pupils should be enabled and encouraged to participate at all stages of the exclusion process, taking into account their age and understanding.

One of the changes in the new statutory guidance is to the test for an exclusion. First,the reference in the 2012 guidance to exclusion being a last resort has vanished. Secondly, the key paragraph in the guidance for Headteachers on the minimum conditions for exclusion has been amended. The 2012 guidance included the following:

A decision to exclude a pupil permanently should only be taken:

  • in response to a serious breach, or persistent breaches, of the school’s behaviour policy; and
  • where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

The equivalent paragraph in the new 2015 guidance s as follows:

It is for the headteacher to decide whether a child’s behaviour warrants permanent exclusion, though this is a serious decision and should be reserved for:

  • a serious breach, or persistent breaches, of the school’s behaviour policy; or
  • where a pupil’s behaviour means allowing the pupil to remain in school would be detrimental to the education or welfare of the pupil or others in the school.

There are two changes here. In 2012, the two conditions both had to be satisfied, whereas in the 2015 guidance it is sufficient for just one condition to be met (subject to compliance with the other paragraphs in the guidance). Further, the second condition is now the lower threshold of detriment, instead of serious harm, to the education/welfare of the pupil of others in the school.

The Guardian  and the Telegraph report that Just for Kids Law is preparing to issue judicial review proceedings to challenge the failure to consult on the new statutory guidance and that the new guidance has a lower threshold for exclusion.

Rachel Kamm, 11KBW Chambers

School Admissions Code – in force

December 20th, 2014 by Rachel Kamm

James Goudie QC posted about the new admissions code recently. It came into force yesterday (19 December 2014) and is available here.

Rachel Kamm, 11KBW

Learning difficulties assessments – High Ct judgment

December 16th, 2014 by Rachel Kamm

The introduction of EHC plans for some 16-25 year olds was one of the most important changes to SEN in the Children and Families Act 2014. Under the previous regime, a special educational needs statement could not provide for a young person to attend further education or higher education. Even if the child remained in a school setting post-16, the statement would lapse (if the local authority had not already ceased to maintain it) when the young person turned 19, although the local authority could choose to maintain it until the end of that academic year. Young people with learning difficulties and/or disabilities who were moving into further education, training or higher education received instead a learning difficulties assessment. This assessment would result in a written report of their educational and training needs and the provision required to meet them (“the LDA”). Any challenge to an LDA was by way of judicial review (as, in contrast to the position for challenges to the contents of SEN statements, there was no statutory right of appeal to the tribunal). That is all changing, with the introduction of EHC plans, which can continue until the young person reaches the age of 25, which can include further education provision (but still not higher education) and which can be appealed to the tribunal. Whilst EHC plans were introduced on 1 September 2014, there is a fairly lengthy transition period and so LDAs will be with us for a little longer yet.

Neil Cameron QC has considered LDAs in R (Smieja by her father & litigation friend Smieja) v Bexley LBC [2014] EWHC 4113 (Admin) (judgment available on Lawtel). The young person was 19 and therefore her placement at a residential school was coming to an end. She was assessed and the LDA recommended a placement at the Fortune Centre of Riding Therapy. However, a subsequent placement approval panel meeting decided not to make this placement because of concerns that she would not be able to transfer skills learned at an out-of-borough residential placement. Instead, the panel made the decision that an individualised programme would be funded which would include 3 (or 4) days on an accredited course at White Rocks Farm with the additional days offered at Adult Education College and/or Twofold (if the young person and her family wanted a 5 day provision); this would be supported by provision of up to 55 hours of Personal Assistance Support; Social Care would source Supported Living Accommodation where the young person could be assisted via The Reablement Team to gain independent living skills; and consideration for Travel Training would also be given.

The issue in these judicial review proceedings was whether the young person could enforce the provision in the LDA and get a placement at the Fortune School of Riding Therapy. It is of course possible to enforce the provision in a SEN statement, because section 324(5) of the Education Act 1996  imposes an obligation on the local authority to arrange the special educational provision specified in the statement (unless the child’s parent has made suitable arrangements). However, there is no equivalent duty on local authorities to arrange the provision set out in an LDA.  Paragraph 17.2 of the statutory guidance states: “Once the student’s education and training needs have been
clearly identified the placement decisions should be taken in the light of the overall budget available.”

The claimant’s judicial review grounds were that:

  1. The decision made by the Defendant to fund a placement other than that contained in the LDA was in breach of statute or unreasonable;
  2. The provision made by a local authority must match the LDA;
  3. If the Defendant was to make provision other than in accordance with the assessment contained in the LDA, the LDA should have been reviewed before such a decision was made;
  4. The decision was procedurally unfair;
  5. The Defendant failed to take into account the fact that the placement/s it agreed to fund was more expensive than the placement which the Claimant had asked it to fund; and
  6. In formulating the programme, the Defendant acted in breach of the provisions of Article 8 and Article 14 of the European Convention on Human Rights (“ECHR”).

The High Court rejected all of these grounds of appeal.

On the first issue, it was common ground that there was no statutory duty (equivalent to section 324(5) of the Education Act 1996) and the statutory guidance did not require the local authority to make the placement recommended in the LDA. Whilst section 15ZA of the 1996 Act states that local authorities must secure that enough suitable education and training is provided to meet the reasonable needs of  persons in their area who are aged 19 or over but under 25 and are subject to learning difficulty assessment, this does not require them to make the particular provision in the LDA. Further, the local authority’s placement decision was not Wednesbury unreasonable on the evidence and the local authority had taken into account the relevant matters (including comparative cost). On the facts, the parents had been consulted and there was no procedural unfairness.  There was no breach of human rights where a local authority was meeting the young person’s training and education needs (albeit not by making the placement that the family had requested).

There is nothing particularly surprising in this decision, but it does highlight that a young person with an LDA has significantly weaker legal rights than if they had a SEN statement. That will change as more young people get EHC plans, with enforceable education and health provision and also rights of appeal to the tribunal.

Rachel Kamm, 11KBW

School transport newsflash

December 3rd, 2014 by Paul Greatorex

This morning the High Court dismissed the challenge in R (PP) v East Sussex CC to the local authority’s policy of only providing transport to eligible children at the beginning and end of the normal school day.

The claim had been brought under section 508B of the Education Act 1996 and section 29 of the Equality Act 2010.  The claimant, who had a statement of special educational needs, contended that the local authority was obliged by one or other of these provisions to provide her with transport to school after medical appointments and transport home from after-school clubs.

A transcript of the judgment is not yet available but a further blog post will appear here when it is.

Paul Greatorex

School Admissions Code

November 4th, 2014 by James Goudie QC

The School Admissions Code 2014 revises and replaces the existing School Admissions Code 2012.  The School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) (Amendment) Regulations 2014, SI 2014/2886, pursuant to s84(1) of SSFA 1998 (“the Regulations”) amend the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012 to give effect to certain provisions of the revised Code.

The majority of changes come into force immediately.  The amendments to the admissions timetable will be phased in from September 2015.

The Code introduces specific, limited changes to the 2012 Code.  The two main changes allow all state-funded schools to give priority in their admission arrangements to children eligible for pupil premium or service premium funding; and admission authorities of primary schools to give priority in their admission arrangements to children eligible for the early years pupil premium, pupil premium or service premium who attend a nursery which is established and run by the school.

There will be no requirement for admission authorities to include these priorities in their admission arrangements, but they would have the freedom to do so if they wished.  Any admission authority wishing to change its arrangements to introduce such a priority would be required to consult parents and others.

There are also minor changes to amend the timetable by which admission arrangements must be consulted upon, determined and published by admission authorities, and for resolving disputes regarding the lawfulness of admission arrangements through objections to the Independent Schools Adjudicator; and to clarify the provisions relating to the admission of summer born children who wish to delay entry into reception.

Guidance is promised (or threatened) on how admission authorities might implement in practice some of the optional changes.

James Goudie QC

Education in Wales

October 28th, 2014 by James Goudie QC

The Education (School Development Plans) (Wales) Regulations 2014, SI 2014/2677 (W.265) apply to Governing Bodies of maintained schools. They impose a duty on the Governing Body to draw up a School Development Plan in order to assist it to exercise its responsibility for conducting a maintained school with a view to promoting high standards of educational achievement.  That duty does not affect the general principles and respective roles and responsibilities of governing bodies and head teachers set out in the School Government (Terms of Reference) (Wales) Regulations. The content of the plan is set out in the Schedule.

The School Development Plan has effect for a three year period. The Governing Body must revise it annually and following an inspection by Her Majesty’s Inspectorate for Education and Training in Wales.

Provision is made in relation to publication. In drawing up the School Development Plan the Governing Body must have regard to school performance information. The Governing Body must consult with those persons prescribed.

The Education (Pupil Referral Units) (Management Committees etc) (Wales) Regulations 2014, SI 2014/2709 (W.270) require local authorities to establish Management Committees (“MCs”) to run Pupil Referral Units (“PRUs”) in their area, and make provision for the constitution and procedure of MCs.  A MC may run more than one PRU.  Local authorities must delegate certain functions, principally the function of conducting the PRU, to the MC.  Written Statements of Policy in relation to the Curriculum of the PRU must be made, and periodically reviewed.

Local authority powers to suspend and dismiss teachers

October 17th, 2014 by Thomas Ogg

In Davies v LB Haringey, a decision of Mr. Justice Supperstone handed down on today (17 October 2014), the claimant was a teacher who had been on full time release for trade union duties for 14 years.  At the time she went on release, she was working at a community school, so by section 35 of the Education Act 2002 her employer was the local authority rather than the governing body.

In 2014, the council wished to investigate disciplinary allegations against her and suspended her in relation to breaches of the council’s Code of Conduct and Social Media Policy.  She claimed that this was a breach of her employment contract, asserting that, by reason of regulation 19 the School Staffing (England) Regulations 2009, only the governing body had the power to suspend her.

The Council, represented by Peter Oldham QC of 11KBW, argued that the Regulations applied only to those worked in schools, and the reality of the situation was that the claimant had not done so for a long time. Further the Council argued that regulation 19 of Regulations gave a power to the governing body to suspend but did not take away the Council’s power to suspend under the contract of employment.

The judge agreed with both of the Council’s contentions.   Whilst the facts were very unusual (on account of the teacher’s absence from the school on trade union duties), nevertheless, the determination that the local authority retains statutory powers of suspension and discipline, at least in exceptional cases, is significant.

Tom Ogg

11KBW Education Conference, 13th November 2014

October 8th, 2014 by admin

11KBW Education Group presents a half day conference on 13th November 2014, focusing on updates in legislation, case law and the day to day issues faced in the Education Sector with topics on: Children and Families Act 2014/special educational needs, academies, transport, exclusions, discrimination and human rights.

Peter Oldham QC will be chairing the conference.

Conference agenda

TIME Topic Speaker
9.15am Registration  
9.45am Introduction from Chair Peter Oldham QC
9.50am Special Educational Needs 1 Rachel Kamm
10.15am Special Educational Needs 2 Joanne Clement
10.40am Academies Jonathan Moffett
11.05am COFFEE BREAK
11.20am Exclusions Tom Ogg
11.55am Transport Paul Greatorex
12.20pm Discrimination and Human Rights Tom Cross
12.45pm Q&A  
1.00pm LUNCH

 

Conference Information

Date: 13th November 2014.

Time: Registration from 9.15am. The conference will start at 9.45am until 1pm, with lunch being served afterwards.

Venue: Crown Plaza, 19 New Bridge Street, London, EC4V 6DB

CPD: The conference will be accredited 2.5 hours with the SRA and BSB

How to book

Cost per delegate will be £40.00 + VAT.

To book your place on the conference please email: rsvp@11kbw.com You will be sent an invoice. We do not have the facilities to take payment by credit or debit card.

Department for Education guidance: comprehensive lists and links

September 22nd, 2014 by Paul Greatorex

Tracking down government guidance, or even knowing what guidance exists, is often far more difficult than it should be, so it was very pleasing to discover the Department for Education has put its into the following comprehensive lists:

In the same helpful vein, the Department last week published “Statutory policies for schools” which sets out all of the policies and documents that governing bodies and proprietors of schools are required to have by law.  This also makes clear which types of schools have to have which policies, how often each policy must be reviewed and (where prescribed) the level of approval required for each.

Paul Greatorex