School Admissions, Disability Discrimination and SEN Appeals

06 November 2008

Following on from the last seminar on 6th November which covered School Admissions, Disability Discrimination and SEN Appeals, please find attached the handouts from the last seminar. In addition to this two questions were raised during the seminar which the speakers have answered as follows:

“The first was in relation to multiple admission appeals. A question was asked about what should be done in a situation where there are multiple appeals and where the school has not established prejudice but will establish it if a certain number of pupils that are admitted. There is a difference in the “old code” and the “new code”. The new code is far from clear. At p. 33-34 of the new code it is stated “if there are several cases which outweigh the prejudice to the school and merit admission but the panel determines that the school could not cope with that number…the panel must then compare all cases and decide which of them to uphold.” This seems to me to cover the question that was raised in the seminar – (i) on the face of it the appeals outweigh the school’s case; (ii) however, not all the appeals can be allowed because there are such a number that if all were allowed the school would not cope; implicitly this appears to assume that if a certain number is reached the prejudice to the school would be such as to militate against further pupils being admitted; (iii) if this is the case the guidance says the panel must compare the cases and decide which to uphold. It seems to me that this comparison will necessarily involve some prioritization. I understand from what was said that DCFS are advising otherwise. As to what is the correct procedure therefore remains unclear and doubtless will result in case law at some stage.”

“The other question that came up was in relation to school transport, after school activities and reasonable adjustments in the area of disability discrimination. A case was reported on Lawtel yesterday which holds that providing ad hoc transport for a disabled child so that he could attend an after school club was a reasonable adjustment and that it did not constitute the provision of “auxiliary aid or service” so as to be precluded from the duty under DDA to make reasonable adjustments. The case was remitted back to SENDIST so that the issue of whether the school was justified in refusing to provide the extra transport. The case is D v Bedfordshire CC and SENDIST ²⁰⁰⁸ EWHC 2664. It is probably best if you alert your education lawyers to this decision (if they have not already heard about it).”