McAuley Catholic High School v C and Others

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Silber
Judgment Date11 December 2003
Neutral Citation[2003] EWHC 3045 (Admin)
Docket NumberCase No: CO/4281/2003

[2003] EWHC 3045 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

THE HONOURABLE MR JUSTICE SILBER

Case No: CO/4281/2003

Between
Mcauley Catholic High School
Appellant
and
(1) Cc
(2) Pc
Respondents
(3) Special Educational Needs And Disability Tribunal

John Friel (instructed by Taylor & Emett of Sheffield) for the Appellant

Sarah-Jane Davies (instructed by Treasury Solicitor) for the Third Respondent

The first and second defendants were not represented

Mr Justice Silber

I Introduction

1

IC, who was born on 14 May 1990, attended McAuley Catholic High School in Doncaster ("the School"). Unfortunately, he suffers from autistic spectrum disorder. IC's parents, CC and PC, made a claim of disability discrimination against the School pursuant to the provisions of the Disability Discrimination Act 1995 ("the Act") and this was heard by the Special Educational Needs and Disability Tribunal ("the Tribunal"). On 14 July 2003 by a written decision dated 22 July 2003 ("the decision"), the parents' claim against the School was allowed solely on the issue of lack of pastoral support with the result that the School was ordered to produce an action plan to deal with the specific needs of children on the autistic spectrum or who had communication difficulties and that a mentoring system be also established.

2

The School has appealed against that decision and it, in common with the Tribunal, had been represented at the hearing of the appeal. The parents of IC, who are the first and second respondents to the appeal, have submitted helpful written representations supporting the decision but they have not been present or represented at the hearing. At the outset of the hearing, the School applied to amend their grounds of appeal. In the absence of opposition from the Tribunal, this application was granted.

II Statutory Framework

3

The relevant statutory provisions are set out in the Appendix to this judgment and so I will briefly summarise the framework but I will refer to the relevant statutory provision in greater detail when I consider the issues raised on the appeal. The Act makes it unlawful to discriminate against a person who has a disability which for the purposes of the Act means that "he has a physical or mental impairment which has a substantial long-term adverse effect on his ability to carry out normal day-to-day activities": section 1(1). It is common ground that IC has a disability for the purpose of the Act. By the Special Educational Needs and Disability Act 2001, the Act was amended so as to cover education and section 28A of the Act makes it unlawful to discriminate against disabled pupils. By section 28C, provision is made that disabled pupils are not to be substantially disadvantaged in comparison with pupils who are not disabled. By section 28L of the Act, there are provisions relating to the permanent exclusion from a school of a disabled pupil. Section 28I of the Act gives the Tribunal jurisdiction to hear complaints of discrimination.

III The Background to the Application to the Tribunal

4

In order to understand the grounds of appeal, I must now describe the background to the application which I take from the undisputed factual findings of the Tribunal. IC had had a Statement of Special Educational Needs since March 2000 and he had been assessed as having problems in the area of social use of language, communication skills and imagination. Assessment by a speech and language therapist revealed an uneven profile of IC's language skills and very poor pragmatic language skills. Although his psychometric assessment indicated a level of functioning below the average level, his academic abilities were not a cause for concern and his teachers were said not to report any significant difficulties for him. IC was described to the Tribunal as a "well behaved child who can be quiet and hesitant [but] he was observed to have only a limited group of friends and interaction with a wider peer group is difficult for him".

5

The Statement of Special Educational Needs for IC referred to the need for his school to have access on an ad hoc basis to an Educational Psychologist and a teacher for pupils with communication difficulties who would provide information and advice on meeting IC's needs. IC became a pupil at the School in September 2001 and his transition "seems to have taken place without undue difficulties" as there was no evidence of any particular problems for him during the Autumn term. Thereafter, IC's behaviour at the School started to deteriorate and the School arranged for IC to be seen by an educational psychologist, Ms. Rachel Kershaw, who duly considered the matter.

6

In her written report to the School dated 13 March 2002, Ms. Kershaw noted the concerns from the staff about the effect of IC's behaviour on the rest of the class and his tendency to be alone at lunch and at break times. She made a number of recommendations to tackle these difficulties and these included the use of a buddy system to address socialisation difficulties and to promote "peer relationships", the use of direct questioning techniques in lessons, the production of subject – specific word banks and the repetition of instructions in lessons to help his understanding.

7

IC's mother was very supportive of these measures and, in particular, of the buddy system, which worked well for IC in Year IC continued to struggle in science lessons and IC's mother was not sure that IC had received the extra help suggested by Ms. Kershaw in the form of subject-specific word banks or more individual support in science lessons. Subsequently, on 22 March 2002, the local education authority amended IC's statement to provide for five hours support per week from a Learning Support Assistant ("LSA") at the School, as well as ongoing monitoring, advice and support from a teacher for pupils with communication disorders.

8

At a meeting which took place on 5 July 2002, IC's mother requested that IC should receive ten hours support per week from a LSA. Mr. Toothill the leader of the Communication Difficulties Team ("CDT") at the LEA said at the meeting that he felt that IC's support were best coming from two or three LSAs if possible. Following this meeting, IC's Statement was further amended on 18 July 2002 so as to provide for ten hours LSA support per week for IC.

9

IC started Year 8 at the School in September 2002. A meeting took place on 4 September 2002 when consideration was given to IC's timetable to the groups that he would be in and to the lessons in which he would receive support. It was confirmed at that meeting that Mr. Toothill would be replaced by Ms. Melanie Whitney, as the representative of the CDT responsible for IC. IC's mother explained that she was unhappy about certain aspects of Mr. Toothill's support for IC. The new Head Teacher at the School, Mrs. Mary Lawrence explained during the meeting that IC's mother was informed about a quiet room, known as Room 30, which was provided at the School for children who needed more support and a safer space during lunch and break-times. The School believed that IC knew of this facility but that he had only used it once. IC's mother said that she had only become aware of Room 30 in November 2001 and she was not sure that IC had known that he could use it. It was also decided at that meeting that a multi-agency meeting would take place and that the date that was arranged for it was 23 October 2002, but it did not take place as IC's parents declined to attend for reasons that will become apparent in paragraph 18 when I record the events, which occurred just before that hearing.

10

Mrs. Lawrence told the Tribunal that the transition from Year 7 into Year 8 is quite a challenge for many pupils as they move from mixed ability groups into sets for each subject. The children were also set in their forms which meant that IC was in groups of lower ability children, which had the advantage for them of being small in size. A disadvantage of the setting system was that it became impossible to replicate the buddy system that had worked so effectively for IC in Year 7 as there were no children of the right calibre in IC's sets in Year 8 to carry out such a sensitive task. The three children who had previously performed that role had all moved into different classes from IC in Year 8. In addition, IC's groups did not always consist of the same children and there were accordingly additional changes of fellow pupils for him to adapt to and cope with.

11

By all accounts, IC's behaviour began to deteriorate during the Autumn term 2002. Mrs. Horton, the SENCO at the School gave an account to the Tribunal that IC's behaviour in terms could often be highly disruptive despite the presence of a LSA. Mrs. Lawrence, who had previous experience working with autistic children, told the Tribunal that she had been called out twice to the classroom to deal with IC when he had become difficult and her previous experience enabled her to calm and stabilise the situation with IC.

12

IC had particular difficulties with science. The method of teaching at the School required the children to work in groups; IC found it hard to cope with this method as he had a tendency to wander around the room and to touch the equipment and chemicals on the teacher's desk while the teacher was trying to help the other pupils. For those reasons, he had been removed from science lessons on two occasions as it was felt that he was presenting health and safety risks. He was then taught by the Head of Science on his own but this regime was perceived as a punishment by IC and by his parents.

13

The...

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