Upper Tribunal provides support for schools facing inordinate discrimination claims

Discrimination claims are inevitably highly fact-sensitive. However, the ruling in the Upper Tribunal Administrative Appeals Chamber, in the case of C & C v The Governing Body of a School[1], includes findings and comments of more general application in cases where parents make unreasonable and wide-ranging claims against their child’s school.

Background

In this case, the parents brought their first claim against the school attended by their disabled daughter within 5 months of her joining secondary school. The claim took three years to resolve, involving numerous decisions by the First-tier and Upper Tribunals. The parents also claimed against the daughter’s previous primary school and the local authority.

The essence of the claim was that the school allegedly failed to assess and monitor the child’s performance using tools that were adequate in light of her disabilities. Further claims related to an alleged failure to offer the pupil speech and language therapy or occupational therapy, or to provide copies of records.

The school made the point that experienced teachers would adapt their method of supporting the disabled pupil to those that they believed would best meet her individual needs in terms of recall and understanding of concepts, rather than rigidly applying a set of rules. The school was also implementing recommendations on therapies included in various expert reports. The First Tier Tribunal found that none of these reports had directly recommended the therapies that the parents claimed their daughter should have been offered.

By the time of the UT hearing, the focus was on the adequacy of the tools used for monitoring the pupil’s progress, as the other claims were said to contain no obvious allegation of discrimination. The school tried hard to engage with the parents, but considered that it had made such adjustments as were reasonable.

The Upper Tribunal’s Findings

The UT stressed that the Equality Act 2010 is, of course, a vitally important piece of legislation for disabled pupils, which parents have every right to use.

However, Judge Mitchell stressed that the Equality Act does not provide some kind of special complaints procedure for parents who are dissatisfied with their child’s education. To treat it as such is to ‘misuse the hard-won rights conferred by the 2010 Act’.

The UT found that the school made significant efforts to understand and deal with the parents’ concerns about how her educational progress was assessed, but that their efforts were met with complaint after complaint. The judge also commented that the parent’s ultimately unsuccessful litigation rarely took the form of focussed arguments constructed by reference to the provisions of the Equality Act 2010, whilst their submissions were extremely lengthy.

The Tribunal was critical that the parents resorted to complaint and litigation only a few months after their daughter joined the school, when ‘unless an assessment procedure is obviously flawed, defects will not become apparent until the procedure has been in operation for a period of time’.

The parents were appealing on the basis that the First Tier Tribunal had failed to impose on the school, as per s.136 Equality Act 2010, the reverse burden of proof to show that it had not discriminated against the child, once facts giving rise to a prima facie case of discrimination had been shown. The UT dismissed this claim, because there was not even an arguable basis for a finding of direct discrimination, nor could it be said that the refusal to provide therapy should have led to a finding of a discriminatory provision, criterion or practice.

The judge ‘expressed concern’ at both the effort that the school was required to expend in responding to the parents’ claim and, in particular, at the worry caused to staff.

Conclusion

The Upper Tribunal repeated the important point that Equality Act 2010 duties are not contravened simply because a parent is dissatisfied with the education provided to a child with special educational needs and that it is a misuse of the Act to use it as a vehicle to ventilate unfocussed grievances about a child’s education.

The school is not under an obligation to provide therapies or other adjustments at the whim of the parents, if such treatment is not specifically recommended in reports by suitably qualified experts. The school also has latitude in using assessment tools and systems for the child’s benefit, with the right to use professional experience to adapt these for the specific individual child’s needs.

Although the facts in each case are different, schools faced with similar wide-ranging and unfocussed claims can take comfort and support from the confirmation that unless the parents can demonstrate either direct or indirect discrimination against their child in line with the provisions of Equality Act 2010, such claims will not succeed.

[1] UKUT 61 (AAC).