R K v Special Educational Needs Disability Tribunal and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 09 March 2006 |
| Neutral Citation | [2006] EWHC 622 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4430/2005 |
| Date | 09 March 2006 |
[2006] EWHC 622 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Mitting
CO/4430/2005
MR D WOLFE (instructed by Levene Solicitors, London N22 8HF) appeared on behalf of the CLAIMANT
R J FRIEL (instructed by IBB Uxbridge, Middlesex UB8 1AB) appeared on behalf of the SECOND DEFENDANT
(As approved by the judge)
A was born on 2 September 1990. He sustained a very severe spinal injury in a road traffic accident in September 1999. He is a paraplegic and incontinent of faeces but his intellect is unimpaired. He spent two years in Stoke Mandeville Hospital and one year at a local education authority maintained special primary school. Slough Borough Council issued a Statement of Special Educational Needs under section 324 of the Education Act 1996.
Part 2 listed his "special educational needs" as including:
"6. [A] is dependent on the support of adults to assist in the management of his self-care, physical and medical needs".
The "special educational provision" listed in Part 3 included:
"6 … In the short term, he is likely to require adult assistance for managing his toileting and hygiene needs…"
Resources sufficient to deliver up to 34 hours of special support assistance per week were provided. Part 4 stated the local education authority's view that his needs would best be met in a:
"mainstream school with a specialist resource base designed specifically to meet the needs of children with Physical Disability (Westgate Comprehensive School)."
Ms K, A's mother, disagreed. She wanted him to go to Slough Grammar School, a school at which his undiminished intellect would be challenged. She appealed to the Special Educational Needs Disability Tribunal (SENDIST) to amend the statement. On 11 February 2002, the Tribunal issued a decision which recorded the agreement of his mother and the local education authority that he should be placed at Slough Grammar School and noted, in the amended Part 4 of the statement:
"…the school is confident that it can meet his intellectual and physical needs without further adaptations to the school buildings."
This statement was erroneous for a combination of reasons (as found by the Tribunal which sat on 12 April 2005, whose decision gives rise to this appeal): the understatement by Ms K of the frequency of, and difficulty of coping with, episodes of incontinence; glossing over the difficulties by the local education authority; and naivety on the part of the school. The statement was not amended so as to require the resourcing of additional hours of special support assistance, even though the school did not have the specialist resource base designed to meet the needs of children with physical disability identified within the local education authority's proposed placement.
The apportionment of responsibility for this state of affairs occupied much of the hearing before the Tribunal. It was largely a distraction from the central issues.
A joined the school in September 2002. When he had an involuntary bowel movement a learning support assistant, initially Mr de Costa, cleaned him up and changed him. Mrs Barrett took over that role in September 2003; but Mrs Earle, by then a Special Educational Needs Co-ordinator, took it upon herself to clean and change him for much of the time. To do so, she had to lift the bottom half of his body. Mrs Lenton, the School Principal, became concerned about the frequency of bowel accidents and the facilities to deal with them.
On 8 October 2003, following such an accident, she sent A home and wrote to Ms K as follows:
"[A] has had yet another bowel accident this morning and we have neither the facilities nor the staff to deal with it appropriately.
When we first accepted [A] it was on the understanding that these accidents were very infrequent. Our experience of last year showed us that these accidents were more frequent than anticipated.
…
There are, also, issues of Health and Safety for our staff and pupils. [A] is now a maturing young man for whom this will become increasingly problematic."
She arranged for a risk assessment to be undertaken by a Health and Safety consultant, Terry Buckler, who reported to the school, on 22 October 2003, in these terms:
"1. There are various occasions when [A] needs lifting by staff. He is already a well-built boy and such lifting presents a high risk of injury to those staff. In order to reduce this risk any staff must have training in manual handling and lifting. Essential to the reduction of risk relating to lifting is the provision of hoists in each of the areas where it is likely to occur. This would include disabled toilet, medical room and each of the classrooms when a standing frame is required …
2. There are high health and safety risks both to [A] himself, other pupils and involved staff caused by his frequent bowel accidents. In order to reduce these risks he should wear appropriate pads or pants. This however would not solve the problems for cleaning and changing and, in order to reduce the associated risks, [A] needs access to suitable cleaning and changing facilities, including a sluice and private properly equipped room…"
Later in the report he stated his view:
"… in order to satisfy Health and Safety legislation and to make appropriate provision for [A], it would be essential to provide a considerable number of auxiliary aids and services and to make physical alteration to the building."
His recommendation concluded with the following words:
"… it is my view that the present placement cannot be sustained on Health and Safety grounds. It is only the total dedication of a member of staff beyond the requirements of her job that have made it possible for the placement to continue thus far."
Mrs Lenton therefore instructed staff not to lift A, but Mrs Earle continued to clean and change him whenever he had a bowel accident. She told the Tribunal that she allowed her heart to rule her head. On 30 April 2004, she sustained a serious and disabling injury to her back when lifting him. She ruptured a disc in the upper spine and damaged the nerves. After Mrs Earle's injury Mrs Lenton repeated her instruction to Mrs Barrett and other members of staff not to risk injury by lifting A. Mrs Lenton also promptly sought the assistance of the local education authority.
On 10 May she asked for two people to lift and change A and repeated her request on 12 May. She sought an amendment to the Statement of Special Educational Needs. The local education authority decided not to reassess and allocated no additional funding. As a result when A had a bowel accident on 15th, 22 June and on 2 September, no member of staff cleaned him up and changed him and he was sent home in the care of an uncle.
On 15 December 2004, Ms K gave notice of a disability discrimination claim to the school and to SENDIST. It covered a number of topics but the main one still in issue was set out as follows:
" Discrimination
In the Autumn Term of 2003, on one occasion, the School refused to allow [A] to be changed, following an accident. As a result, Ms [K] made a complaint but subsequently suspended that complaint around March 2004, because matters had appeared to have been resolved and in order to maintain good relations with the school. However, in June 2004 on two occasions and on the first day of term in September 2004, the School has again refused to permit [A] to be changed, following an accident. As a result, on each occasion, he had to go home and missed the rest of the school day, in order to be cleaned and changed.
In the circumstances, it is alleged that this constitutes discrimination by the School against [A], in breach of the provisions of section 28A(2), Section 28B(2), and Section 28C(1)(b) of the Disability and Discrimination Act 1995."
Subsequently Ms K claimed that a further act of discrimination had occurred on 7 January 2005 when A was not taken on a Year 9 trip to an athletics centre. She appeals against the findings of the Tribunal on these two issues.
It is now necessary to set out the statutory framework. The relevant provisions of Part 4 of the Disability Discrimination Act 1995 are as follows:
Section 28A:
"(1) It is unlawful for the body responsible for a school to discriminate against a disabled person—
(a) in the arrangements it makes for determining admission to the school as a pupil;
(b) in the terms on which it offers to admit him to the school as a pupil; or
(c) by refusing or deliberately omitting to accept an application for his admission to the school as a pupil.
(2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body.
(3) The Secretary Of State may by regulations prescribe services which are, or services which are not, to be regarded for the purposes of subsection
(2) as being—
(a) education; or
(b) an associated service.
(4) It is unlawful for the body responsible for a school to discriminate against a disabled pupil by excluding him from the school, whether permanently or temporarily."
Section 28B(1):
"(1) For the purposes of section 28A, a responsible body discriminates against a disabled person if—
(a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and
(b) it...
To continue reading
Request your trial
-
K v X School and Another
...A's mother, appeals against an order made by Mitting J in the Administrative Court of the Queen's Bench Division on 9 March 2006 ( [2006] EWHC 622 (Admin)) dismissing her appeal against a reserved decision of the Special Educational Needs and Disability Tribunal (SENDIST) made on 2 June 20......