A Practical Guide to Claims in the First-Tier Tribunal (SEND) for Disability Discrimination in Schools in England

Pursuant to the Equality Act 2010 (“EqA”), it is unlawful for the responsible body of a school to discriminate against a pupil or prospective pupil on the grounds of his or her disability. A claim for disability discrimination, in the context of a school situated in England, must be brought in the First-tier Tribunal (SEND) (“the FTT”). The FTT’s jurisdiction with respect to the EqA is limited solely to such claims, with other types of education-related claims being considered in the county court. Claims to the FTT differ from county court claims in a number of important respects: Accessibility: the FTT is designed to be accessible to parents and young people who may have limited means, and / or limited access to legal advice or representation. As such, no issue fee is payable to bring a claim to the FTT, and the general rule in the FTT is no order for costs. Further, the FTT seeks to adopt a more informal and “user friendly” approach to proceedings than might be found in the county court, with the aim of ensuring that parents and young people should not need to engage legal representation. Procedure: the FTT has its own distinct procedure rules. Further, it operates on an inquisitorial basis, in light of its role as a specialist tribunal. Remedies: further to a determination of disability discrimination, the FTT has a broad power to order such remedies as it thinks fit, which could include, for example, reinstatement, additional tuition, or policy changes. To this extent, the FTT’s power is more wide ranging than the county court. However, unlike the county court, the FTT is unable to order the payment of compensation. The volume of disability discrimination claims brought in the FTT has increased over time, rising from 190 registered appeals in the academic year 2021 / 2022 to 330 registered appeals in the academic year 2022 / 2023 (an increase of over 70 per cent). In light of the significant challenges facing the SEND system in England, it may be anticipated that the number of claims will continue to grow. This book has been written to provide a practical, detailed guide for practitioners embarking upon, or responding to, a claim in this unique jurisdiction. It addresses the statutory framework and case law (including the definition of disability and the various forms of discrimination), the procedure with respect to bringing or responding to a claim in the FTT, and the framework for challenging a decision of the FTT. ABOUT THE AUTHOR Holly Littlewood is an experienced barrister and a member of the public law team at Spire Barristers in Leeds. Holly practises in education law and mental capacity law, and is ranked by the Legal 500 as a Leading Junior in education, Court of Protection and community care. She regularly acts in proceedings in the First-tier Tribunal (SEND) on behalf of local authorities and responsible bodies of schools, and also acts for parents. She delivers bespoke education law training to a variety of audiences, including lawyers and local authority SEND teams. Before returning to the independent bar in 2021, she worked in-house for a large local authority in their education law team. CONTENTS Chapter 1 – Introduction: The Equality Act 2010 in the School Context Chapter 2 – Disability Chapter 3 – Admissions and Exclusions Chapter 4 – Direct Discrimination (Section 13 EqA) Chapter 5 – Discrimination Arising From Disability (Section 15 EqA) Chapter 6 – Indirect Discrimination (Section 19 EqA) Chapter 7 – Failure to Make Reasonable Adjustments (Section 21 EqA) Chapter 8 – Harassment (Section 26 EqA) and Victimisation (Section 27 EqA) Chapter 9 – The Interrelationship Between Part 6 Chapter 1 EqA and Other Statutory Rights and Duties Chapter 10 – Procedure for Bringing a Claim Chapter 11 – Remedies Chapter 12 – Challenging an FTT Decision