Successfully defending SEND Tribunal claims

Our education sector experience includes acting for schools, in both the state and private sector, in successfully defending disability discrimination claims brought in the Special Education Needs and Disability division of the First Tier Tribunal (SEND Tribunal).

In two cases that we have dealt with, where we represented a private school and state school respectively, the claims brought against each in the name of pupils by parents who claimed that the children were disabled and subjected to detrimental treatment for a reason arising in consequence of their alleged disability. The allegation made in each case was that each school failed in their statutory duty to make reasonable adjustments to reduce the adverse effect that their disability had on their day to day activities and the disadvantage caused by their disability. The reasonable adjustments ranged from access to extra-curricular activities and additional resources to support the pupil, to a complaints policy time limit and anti-bullying policy measure. Both sets of parents needed to have declarations from the SEND Tribunal that the schools were actually aware or should have been aware of the disability of the relevant child; and that they each failed in their duties, referred to above. These SEND Tribunal claims had to be made and succeed first in order for them to then bring negligence claims against each school in the courts to claim compensation for foreseeable losses arising from negligence, such as the costs of alternative fee paid education.

It was particularly important to defend these claims for the following reasons:

1. All schools have to deliver learning and development for all pupils, with limited resources;
2. Those resources have to be shared amongst many children;
3. Concentrating additional resource on one student can have a detrimental effect on the resource left for others. It is a balancing exercise;
4. Teachers work tirelessly to support all learners and yet they do not expect thanks or overt expressions of appreciation for all they do. They are generally modest;
5. However, they are entitled to respect for the difficult jobs they do and the challenges they meet in delivering the best possible progression and outcomes for their pupils;
6. To be accused of being discriminatory and by implication uncaring, affects their morale greatly, particularly when they have tried their level best to do the right thing to all children they teach and develop;
7. It matters to them as professionals, as well as to the school that they are fearlessly loyal towards, to avoid reputational damage arising from a declaration of discrimination made by a Tribunal, because such a declaration can have a devastating effect on their sense of self-esteem and pride in what they do;
8. A claim may negatively impact the number of children applying to the school in the next financial year, and impacting any additional money given to the school to support students with additional needs;
9. When the profession is finding it difficult to recruit good teachers and the sector is losing staff; and adverse finding can drive good teachers away from the sector;
10. The best possible defence needs to be deployed by to defend scattered and unwarranted claims; and
11. The financial exposure in the event of declaration of disability discrimination.

With our help these claims were successfully defended.  For more information on defending SEND Tribunal claims or help if you have a claim needing robust defence, tireless support and outcome focussed advice then we are here for your school. Please contact nick.hobden@ts-p.co.uk