How to Handle Disability Discrimination Claims in Schools

We are seeing a noticeable increase in the number of disability discrimination claims being lodged by parents against schools in the First-Tier Tribunal (Special Educational Needs and Disability ('SEND')). More recently these have included claims linked to the coronavirus (COVID-19) pandemic (for example, in respect of sanctions for hygiene breaches, and the quality of remote education/risk assessments).

We have prepared a list of actions you need to take to ensure your school is in the best possible position for handling disability discrimination claims.

Disability Discrimination Claims - What to Do

• Be vigilant for correspondence that is addressed to 'The Chair of the Responsible Body' as this is the terminology used by the Tribunal when a claim has been registered. The correspondence will consist of a claim form, the claimant's documents in support of their claim, a guide to preparing the final hearing bundle (which is the responsibility of the responsible body) and the preliminary Case Management Directions which will include the case deadlines.

• Be prepared to act quickly. These claims have been lodged several weeks ago and a Judge will have considered the allegations of misconduct against the school and decided to register at least some, if not all, of the claims. A failure by the responsible body to comply with the case timetable deadlines may result in the responsible body's case being struck out or having their participation in the proceedings restricted.

• If more time is reasonably required to comply with a Tribunal deadline, promptly complete a Request for Change Form and submit it to the Tribunal after consulting with the claimant to obtain their views. Do not assume that the time extension has been granted until this is confirmed by the Tribunal.

• Most schools will have insurance cover for legal expenses incurred when instructing a solicitor to represent the school in respect of the claim; who in turn will instruct a barrister to represent the responsible body. The insurance cover will be with the DfE's Risk Protection Arrangement (RPA) or a commercial insurer. Early notification of the claim is key to ensuring sufficient cover is in place, and we recommend informing the insurer of the school's preferred specialist law firm.

• Be clear as to which entity is the 'responsible body' in the claim. In a community or voluntary controlled school, this will be the local authority. In a foundation or voluntary aided school, it is the governing body, and in an academy trust, it is the board of trustees (not a local governing body if the school is in a MAT).

• Notify the responsible body that a claim has registered against them as soon as you become aware. The responsible body will need to have oversight of the claim from an early stage (this is particularly important where the claim is against a school in a MAT, where the board of trustees of the MAT is the responsible body). The Tribunal requests that there is a nominated Governor/Trustee authorised to make strategic decisions about how the claim will proceed on behalf of the governing body or board of trustees (although there can also be a point of contact at the school to assist with day-to-day management).

• The school's evidence is key to preparing the Response (ie the formal defence) to the claim and we strongly advise that you collate all relevant documentation as soon as you become aware of the claim as the school's documents may be extensive in some complex cases.

• Make sufficient time and resource available to meet the first direction/deadline as it is the most onerous to meet. It requires not only a full legal Response to be prepared and filed/served, but also a completed Attendance Form with witness details and, crucially, these must be accompanied by all documents (correctly redacted) on which the responsible body intends to rely.
  
  
• Consider who your witnesses will be, and put them on notice that you will be asking them to read the claim form/allegations and prepare an initial draft witness statement in Word format, for conversion into a formal witness statement in due course. Most of these are likely to be current staff, but some may be former staff or external professionals who will need to be contacted to see if they are happy to assist.

• In parallel to preparing the Response - and usually with the benefit of legal advice - the responsible body should consider the strategic options available to the school. Is this a case that should be settled between the parties through without prejudice discussions, or is this a case that must be prepared for a full hearing? Often the approach will involve consideration of both of these approaches at each stage of the case, with a view to facilitating an early resolution of the claim. Mindful always that these claims are stressful and time intensive for everyone involved and at the heart of the claim is a child or young person.

• Remember that a 'disability' in equality law includes mental/behavioural disorders/impairments, and there is no requirement for a formal diagnosis. The responsible body will be liable if they knew, or ought to have known, that the pupil had an impairment which meets the definition. It isn't a high threshold, and the overwhelming majority of pupils with ASD, ADHD, ODD, NF1, SEMH need, separation anxiety and even recognised issues with general anxiety, whether formally diagnosed or not, will meet the definition.

If you have been served with a disability discrimination claim in the First-Tier Tribunal (SEND), or you are dealing with a parent who is alleging/complaining that the school has discriminated against their child on the grounds of disability (or, indeed, any other protected characteristic) and would like advice and support, please contact Yvonne Spencer (020 7665 0870) or Joanna Goddard (020 7665 0805) in the Regulatory Compliance team. Alternatively, complete the form below.