K v the School and Special Educational Needs & Disability Tribunal [2007] EWCA Civ165

A was a child severely disabled as a result of a road traffic collision when he was nine years old.  He was left paraplegic and incontinent of faeces and unable to change or clean himself after passing a motion although his cognitive abilities were unimpaired. As a consequence of his disability A had a statement of special educational needs (SSEN).  This case concerns an appeal by A’s mother, K, following an order of the High Court dismissing her appeal against a reserved decision of the Special Educational Needs and Disability Tribunal (SENDIST).  SENDIST had rejected her claim that the governing body of A’s school (the School) had unlawfully discriminated against him contrary to the Disability Discrimination Act 1995 (DDA).  K appealed to the Court of Appeal.

The basis of K’s claim against the decision of SENDIST was that the school had on more than one occasion refused to allow A to be changed after a bowel accident.  It had also twice sent him home in order to be cleaned and changed.  K alleged that this action by the School constituted discrimination by the school against A in breach of the provisions of section 28A (2), 28B (2) and 28C (1) (b) of DDA 1995.  K sought an order setting aside the SENDIST decision and for the application to be remitted to a fresh tribunal for reconsideration.  Permission to appeal was granted for this appeal on the basis that the relationship between the disability discrimination regime and the special educational needs regime were matters of sufficient importance to warrant consideration by an appeal court.

Part IV of DDA 1995 states that “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”. For the purposes of s28A of the Act, “a responsible body discriminates against a disabled person if, 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 it cannot show that the treatment in question is justified.”  Less favourable treatment is justified only if the reason for it is both material to the circumstances of the particular case and substantial.  Part IV also requires the responsible bodies for schools to take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled.  Part IV of the Education act 1996 provides that governing bodies of schools shall, where a registered pupil has special educational needs (as defined in section 312(1)) ensure that those needs are made known to all who are likely to teach him and ensure that teachers in the school are aware of the importance of identifying and providing for those pupils who have special educational needs.

A attended the School, as agreed between K and the Local Education Authority and identified in Part 4 of A’s SSEN, as being able to meet his intellectual and physical needs and without adaptations to the building.  The High Court found this statement to be erroneous.  K had understated the frequency of A’s incontinence but his SSEN was not amended so that additional support could be provided for him.  Mrs L, the School Principal, became concerned about the frequency of bowel accidents and the facilities to deal with them.  A was sent home followed by a letter explaining to reasons for this.  Mrs L arranged a risk assessment to be undertaken by a health and Safety consultant, TB.  TB recommended that the placement should not continue based on health and safety grounds and “it was only through the total dedication of one member of staff beyond the requirements of her job that had made the placement possible thus far.”  Mrs L sought an amendment to the SSEN but the local authority declined to re-assess and allocated no additional funding.  A was sent home a further three times after bowel accidents.

SENDIST had found that A’s SSEN was inaccurate. The SSEN stated that the School could meet A’s physical and intellectual needs without further adaptations to its buildings.  It appears that the School had not been consulted by the LEA before the agreement with K was made and this information was inaccurate.  There were considerable discrepancies between what the LEA and family had told the School and the School’s understanding of A’s needs.  SENDIST concluded that A had not suffered disability discrimination by the School in respect of his bowel accidents.  Firstly, the SSEN had not imposed any additional liability on the School for changing and cleaning A. Secondly, if a non-disabled child at the School had the same type of accident, he would be expected to clean himself and if it was not possible for the child to remain at school then the school would send him home.  Therefore there was no disability discrimination suffered by A when he was sent home after a bowel accident.  Even if it was wrong about this, SENDIST accepted that the School was justified in not cleaning A because of health and safety issues and it dismissed K’s claim.

The High Court had been asked by K to remit the case back to SENDIST for reconsideration of this and other issues.  To do so it needed to be persuaded that there was a reasonable possibility that “a Tribunal accurately directing itself as to the law could properly conclude that the cleaning and changing of A was an educational or associated service.” It held that it could not and concluded that the school, in sending A home after a bowel accident, was not guilty of discrimination contrary to the DDA 1995.

The Court of Appeal agreed with the High Court and held that although the School had treated A less favourably and put him at a substantial disadvantage, it was justified in doing so under the DDA 1995.  The School had taken such steps as were reasonable to take and that its failure to comply with the relevant sections of the Act was justified.  The Court of Appeal added that the School had complied with its duties under Part IV of the Education Act 1996.  It had provided A with the special educational provision set out in his SSEN and if additional provision was required it could only be obtained by an amendment to the SSEN.  It appeared to the court that this did not happen because K feared that if the SSEN was revisited the LEA would have insisted upon A’s removal to another school.  If a parent obstructs the only realistic avenue to meet a particular child’s needs the same parent could not at the same time accuse the school of discriminating against that child if it is unable to meet those needs.  The court found that the school was also justified in refusing to change and clean A on another ground, that of health and safety on the basis of TB’s report.  Without the appropriate equipment and facilities the School’s action was justified and had it instructed or allowed staff to change and clean A, it may have left itself open to an action for damages for personal injuries suffered by any member of staff.

Appeal dismissed.

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