Rise in disability discrimination claims in the SENDIST Tribunal

On 8 December 2022 the Special Educational Needs & Disability (SENDIST) First Tier Tribunal released their most recent quarterly statistics.

The SENDIST Tribunal are responsible for handling appeals against local authority decisions regarding special educational needs (SEN) and disability discrimination claims against schools (including independent schools) and/or local authorities.

The statistics released show what’s happened at the SENDIST First Tier Tribunal, at a national level, updated to the end of the 2021-22 academic year.

As expected the SENDIST Tribunal has continued its upward trajectory in relation to SEN appeal claims. We have seen a steady increase year on year in these types of claims, from 3,100 appeals registered in 2014/15 to registering the highest number of appeals (11,000), in the academic year 2021/22, an increase of 251%.

The statistics also show an increase in appeals registered in relation to disability discrimination claims against schools and/or local authorities. In 2021/22, there were 190 registered appeals in relation to disability discrimination, 26 more than the previous year (16% increase).

How does this affect independent schools?

Mirroring what is being reported in the official statistics, we are currently seeing an increase in Tribunal claims for disability discrimination in relation to pupils against independent schools.

Although the Children and Families Act 2014 does not apply wholly to independent schools, and independent schools are not required as a general rule to comply with the SEND Code of Practice, the Equality Act 2010 does apply to all schools and education settings, and it is in failing to comply with their obligations under this legislation that independent schools risk finding themselves on the receiving end of a disability discrimination claim.

In 2021, 36% of pupils in year 11 had been identified with SEN at some point in their educational journey and of these, 7% of pupils were in independent schools.

The Equality Act 2010 prohibits discrimination against pupils or potential pupils on the basis of protected characteristics. These protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Prospective pupils with a disability must not be treated less favourably than non-disabled pupils and, going further, there is a legal duty for independent schools to consider and make reasonable adjustments where necessary to remove any substantial disadvantage that disabled pupils may encounter.

This legal duty is an anticipatory and continuing one. It applies to current pupils at a school and to prospective pupils who may apply for admission. As it may not always be clear if a pupil is ‘disabled’ within the meaning of the Equality Act, and as a ‘disability’ is broadly defined, it is important that schools explore what this means on a day-to-day basis for their setting and demographic.

If a pupil is or may be disabled within the meaning of the Act, the school must consider whether any reasonable adjustments may be made. Our detailed guide on making reasonable adjustments for disabled pupils can be found here.

What is the future for the SENDIST Tribunal?

As the number of SEN appeals and disability discriminations being lodged increases, it has become clear that the Tribunal are struggling to keep up with demand. In response to growing concern about the challenges facing the SEND system in England and the future of the children and young people it supports the SEND Review was launched in 2019.

As part of this consultation the Government have set out their intention to streamline the redress process to make it easier to resolve disputes earlier, including through mandatory mediation, whilst retaining the Tribunal for the most challenging cases. It is anticipated that these changes will relieve some of the pressure on the Tribunal.

Despite the green paper on the future of the SEND system being published in March 2022 the Department for Education are yet to complete the process of considering the responses received during the public consultation on the proposals. With multiple delays and ministerial changes within the Department it is not yet clear what the future holds for the Tribunal.