Disability Discrimination

This form of discrimination is when a person (a staff member, teacher, governor etc) uses a policy or certain criteria which puts a child or young person at a disadvantage due to their disability compared to their peers, and the nursery/school/college cannot show that it was a proportionate (fair) way of achieving a ‘legitimate aim’. A ‘legitimate aim’ means a genuine outcome or goal.

An example of this could be a school apply a ‘no exceptions’ rule to a football team tournament, meaning that a child who has co-ordination difficulties who usually plays for the team is not allowed to attend the tournament because they might impact the team’s chances of winning.

The challenge here would be that the nursery/school/college would need to show that not allowing that child to attend was the only way that they could attend and play in the tournament. This can be difficult to challenge, but equally, very difficult to defend and the more serious the impact on the disabled child or young person, the more justification is required when trying to defend it.

This form of discrimination occurs when someone (teacher, staff member, governor etc) treats a disabled child or young person (or a prospective pupil) in an unfavourable way because of something which happens because of their disability and the nursery/school/college cannot show that it was a proportionate (fair) way of achieving a ‘legitimate aim’. A ‘legitimate aim’ means a genuine outcome or goal.

For this type of claim to be successful, a parent/carer must prove is that the nursery/school/college knew that the child/young person was disabled. If they did not know or could not have reasonably been expected to know that the child or young person was disabled, then the court may not agree the action was unlawful (depending upon the circumstances).

An example of this could be a child with ADHD is excluded from school for persistently interrupting the class teacher as he didn’t understand the work. As a result, this caused disruption to the whole class.

This could not be justified if the school could not show that the child had support in place to help him understand the work and that his exclusion was the only way in which the rest of the class were now able to learn.

Failure to make a reasonable adjustment for a disabled child or young person is discrimination under the Equality Act (2010).

This means that schools must look at doing things differently if a disabled child is at a significant disadvantage. Reasonable adjustments can be simple and do not need to cost money or be expensive.

Some examples of reasonable adjustments could be:

• Allowing extra time, rest breaks or a scribe in tests or exams
• Providing equipment or extra help, for example the use of a laptop
• Giving a child with a bowel condition a toilet pass to use the staff toilets
• Ensuring a child who is visually impaired has their work in a different format

This happens when a disabled child or young person is subjected to unwanted conduct relating to their disability which has the purpose or effect of violating a pupil’s dignity or creating an intimidating, humiliating or offensive environment for the pupil.

An example of this could be a teacher shouting at a child who is deaf for not paying attention, when their disability prevents them from hearing correctly.

This is when a school does something which disadvantages a disabled child or young person as a result of the child or young person (or their parent/carer) making a complaint about their treatment.

An example of this could be a child or young person is treated unfavourably because their parent/carer made a complaint to a school about their child/young person’s treatment and expressed they would be looking to seek legal advice around this.

The first step would be to try and resolve the issues with the nursery/school/college directly. Arrange a meeting with them and/or make a formal complaint, making sure you have followed their complaints procedures. These can be found on their websites.

If this action does not resolve the problem or you do not want to complain to them directly first, you may be able to complain to the Special Educational Needs and Disability (SEND) tribunal. It is important to note however, that there is a time limit of 6 months to make a claim and if this deadline has passed, the court may not accept your claim, and they will expect you to have attempted your own resolution first.

You can complain to the Department for Education (DfE) if the SEND tribunal will not handle your case. More information can be found here.

The SEND Tribunal has produced guidance on bringing a claim of disability discrimination against a school and explains the process and what to expect. Click here for more information.

You can submit a claim to the SEND tribunal service about the following;

• a school, nursery or pupil referral unit maintained by a local authority

• an independent school
• a free school, including an academy

You cannot submit a claim to the tribunal about:

• a private nursery, unless it’s part of a school *
• a further education college *

• an organisation using a school’s premises *

*(please contact the team if you wish to submit a claim against the above)

You can submit a claim to the SEND tribunal if you are: 

• Parent/carer who holds parental responsibility for a child/young person.
•  A young person and/or their parent/carer on their behalf, over school leaving age but under 18.

To submit a claim of disability discrimination, you will need to complete a claim form. This must be received by the SEND tribunal within 6 months of the alleged discrimination taking place. If the submitted claim is after 6 months, you’ll be asked to explain why.

You can include events which happened more than 6 months ago, but these must directly relate to the claim you are submitting, which happened in the last 6 months. The tribunal must be able to treat events as a single claim about one ongoing issue.

For example, if your child was permanently excluded from school after a series of suspensions which you believe were all because of the child’s disability, the tribunal could treat them as a single complaint.

Download and complete the relevant form:

•  If you’re a parent making a complaint on behalf of a child you will need to complete this form: SEND 4A
•  If you’re a young person above school leaving age making a complaint yourself, you will need to complete this form: SEND 4B

You can include details of up to 5 witnesses who you’d like to bring to the hearing on your form.

When you have completed the claim form and signed it (this can be an ink signature or typed), make sure you keep your own copy and then send it and all other relevant documents to:

HM Courts & Tribunals Service  

Special Educational Needs and Disability Tribunal
1st Floor
Darlington Magistrates Court
Parkgate
Darlington
DL1 1RU 

Call: 0300 303 5857
Email: send@justice.gov.uk

Please note, the tribunal will not send your documents back to you, so always send copies, not originals.

If you have any queries, you can call and speak to speak to the tribunal. You can also contact the tribunal service if you have any questions about completing the form, but they cannot give you legal advice.

Once the tribunal has registered your claim, they will send you a letter outlining the key dates of your claim. These key dates include the response from the school, your final evidence submission deadline and the hearing date. You must adhere to these dates and complete the actions as outlined or you risk your claim being rejected.

To change your complaint, for example to ask for a different hearing date or add more witnesses you will need to download and complete this form: SEND7

In the event that you wish to withdraw your claim, you will need to download and complete a SEND8 form. We advise you book an appointment with the team first if this is something which you are considering.

The hearing will usually be attended by:

• up to 3 tribunal members – this will include the Judge and tribunal members who have expertise in the SEND arena

• a clerk or someone making official notes (these may be off screen)
• someone representing the school or local authority you’re complaining about
• witnesses

You do not have to go to the hearing, but if you do you can ask questions and present the case yourself. If you’re complaining as a young person, your parents can come to the hearing.

If you would like any of the below, you will need to fill in this form: SEND11: 

• someone to represent you
• someone to support you
• witnesses

You can ask to have an interpreter to translate what happens in the hearing, but they cannot represent at the hearing you or give you legal advice. If this is something you require, you will need to contact the tribunal service directly.

You might be asked questions by:

• your legal representative (if you have one)
• the school/local authority’s representative
• the tribunal members
• the Judge

You’ll usually get a letter with the tribunal’s decision within 10-20 working days of the hearing. The decision will be called an order. The letter will outline the reason for the claim, an overview of what happened, the evidence presented and the law which the Judge needs to look at when making their decision. The letter will then explain the outcome and what happens next.

If your claim is successful, the school or local authority must act on the tribunal’s order within a set amount of time, details of which are on the decision letter.

You can complain to the Local Government Ombudsman if a local authority does not action upon the order given by the SEND tribunal.

Local Government Ombudsman

PO Box 4771 
Coventry 
CV4 0EH 

Telephone: 0300 061 0614 

If your complaint is not successful, the letter giving the tribunal’s decision will tell you how to apply to: 

• get the decision ‘set aside’ (cancelled) if you think there’s been a mistake in the process

• ask the tribunal to ‘review’ the decision, for example if your circumstances have changed since you got the decision, or the decision contains a mistake

You can also ask for permission to appeal to the Upper Tribunal (Administrative Appeals) Chamber if you think the SEND tribunal has made a mistake and acted against the law.

You must ask for permission to appeal within 28 days of the date on the tribunal’s decision letter. If this is something which you wish to consider, we advise you contact the SEND tribunal service to discuss this further.

You can get free help and advice from:

• The Independent parental special education advice (IPSEA)
• HM Courts and Tribunals Service
• Contact
• Child Law Advice

Alternative, you can request an appointment with the team to discuss your case. This can be done via our online referral form here.