Depressingly, I'm hearing just as many, if not more, cases of families being forced to go to the First Tier SEND Tribunal to get the provision their child needs, than ever before.
But sometimes, it's not an Education, Health and Care plan that drives parents to take action, it's disability discrimination against the reasonable adjustments made by their child's school. Today we hear from a parent, Helen, on her family's story about going through the courts to try to improve things not just her her son but for other families as well.
Our Tribunal case against our son's school over disability discrimination
Parenting children with special education needs adds many layers of joy and challenges to my wonderful, exhausting, frustrating, and amazingly rewarding life as a mum. As someone who is qualified to teach, but after completing a year’s training chose not, I know from first-hand experience that effective teaching is incredibly demanding. Having to balance the diverse needs of 30 children with concerned parents, stressed colleagues, Ofsted requirements, limited resources… the list goes on and on.
I have taught adults for over 15 years, albeit under the more glamorous title of Leadership and Management Trainer, and so understand the principles of learning. I have seen good teaching and bad teaching, and I have seen an even more diverse range of leadership skills in schools, and the damage that occurs when things go wrong. With all of this knowledge and experience I know that we must never shy away from asking for the best efforts from schools for every child, because it really does matter.
All too frequently I hear parents complain to each other about the quality of their child’s education, but these may be just general gripes and grumbles. Occasionally there are more concerning issues raised, some of which may impact a child’s development, wellbeing or happiness. I would hope that parents, carers and schools could have open and constructive conversations about such things, working together in the best interest of a child, but this isn’t always the case.
I’d like to share our experience of not only taking ownership of our children’s education from a school, but also of challenging that school to account for its actions. It’s been a tough journey dealing with the fight for the right education for our children, alongside a lengthy and complex legal process, but it has absolutely been worth the effort.
Reaching breaking point
After more than two years of repeatedly raising concerns over the education, progress and happiness of our three children, in March 2015 we reached breaking point with a primary school. None of the requests for help for our children were exceptional or out of the mainstream, and are standard in many other schools, but went ignored.
We were particularly concerned by the lack of appropriate SEN provision for our son, and took our complaints to the school Governors. We endured several distressingly unproductive meetings, and finally felt we had no choice but to remove two of our children to start home-schooling. Our eldest was near enough to the end of his final year to be left on the school’s register.
I received an overwhelming amount of support and understanding from other parents, but a few were openly hostile and offended by the thought that I was willing to challenge the system and do something different. Fortunately the home education communities in Wiltshire and Bath were wonderfully welcoming and proved to be an endless source of information and resources.
Whilst taking our children out of the school was a very obvious demonstration of our dissatisfaction, we needed to explore the options open to us in order to attempt to address the issues we had faced, hopefully helping to ensure that in the future other children would not be impacted in the same way.
Appropriate form of action
There were several avenues of complaint we could have followed, but we felt that the most appropriate action was to submit a claim of disability discrimination, through a failure to make reasonable adjustments, to the First-tier SEND Tribunal Service. It was an additional burden for us to manage, and ultimately would not change the future for my children as they were no longer pupils at the school. The only outcomes we sought from the tribunal were a review of SEN policies and a written apology from the school recognising the mistakes made, but it was important to both my husband and I to have some means of redress, and to try to improve things for other families.
A reasonable adjustment is the requirement for an organisation to change what they do or were proposing to do to ensure a person with disabilities is not disadvantaged, and the action should generally be anticipatory. Our requests and the SEN professionals’ recommendations for our son centred on literacy support and IT equipment. We felt these things would enable him to better access and record his learning, allowing him to be more engaged at school and ultimately to progress to his potential.
We also wanted his physical needs to be considered in order to reduce the discomfort and pain he felt. His difficulties during the school day meant we often took home a child who was frustrated, angry and at times inconsolably upset. He masked his behaviour during the day in an attempt to conform, but at home fully released his pent up anxieties.
We opted to deal with our complaints and legal case quietly and privately, relying on just a few good friends to act as sounding boards and at times shoulders to cry on. The financial cost of our actions has been high as in the initial months we engaged a solicitor to help establish our legal position, contact the school to detail our concerns and again ask for an apology.
I wasn’t able to earn as much as usual whilst I home-schooled, and hundreds and hundreds of hours were spent ploughing through reams of legal documents as we managed the case ourselves. The emotional strain it placed on us all is simply immeasurable. It's really disappointing when a school lets your child down, and not only are there the practical implications to deal with, but most importantly the child to consider, and we had to operate in parenting overdrive mode trying to balancing social, emotional and educational needs.
The disability discrimination claim took over eight months from initial submission to final hearing. I have to state that despite the Tribunal Service’s efforts to make them accessible, disability discrimination cases are complex, and the onus is on parents to prove many things. For us this included evidencing that the child has a legally recognised disability; that a provision, practice or criteria within education was applicable; that there was a failure to make a reasonable adjustment which caused a child to be disadvantaged compared to non-disabled children; and that finally the child was significantly impacted. None of these measures or terms are clearly defined for parents, making it a bit of a guessing game, yet all must be proven without doubt.
The initial hearing date was in April, but after several hours spent reviewing the documentation, the tribunal was postponed as the school had not properly prepared the paperwork. The Tribunal Service saw enough cause for complaint in our case to allocate a full day in court in May with a tribunal judge and two expert panel members. The hearing was exhausting and it felt as if I was being dragged through a marathon of questions as the eight separate issues we had raised were addressed.
Still no apology
We took some comfort from the day as the panel repeatedly challenged the school’s statements, practices and decisions from a professional standpoint. It was a cathartic experience watching the school fielding questions we had long been wanting to ask, and the panel went as far as to show incredulity at some of the school’s actions, and asked at one point if their behaviour could be perceived as vindictive towards us.
Although we did not get the decision we hoped for, and have still not received a letter of apology, we recognise that the tribunal panel could only operate within the guidance of the law when making their decision. It seems it can be sufficient for a school to suggest a reasonable adjustment occurred even it lacked substantial proof, clearly wasn’t the right thing to do, and may even have been wholly inappropriate. We had both the opportunity and grounds to appeal, but are satisfied that we had our day in court and no longer wish to direct any more energy in that direction, hoping that lessons have been learnt and changes made within the school.
Moving beyond those legalities, the really good news is that we can now celebrate our efforts. We are always proud of children, and can be especially so now. We see our eldest flourishing in a secondary school where his academic talents are recognised and supported. The younger two were ready to join a new primary school late last year, after an excellent assessment by the Education Welfare Officer of our home schooling efforts.
We now see them happy to head out of the door each morning to school, and pick them up smiling at the end of the day. After a period of regular specialist support, my middle child has progressed well, and is starting to tackle the everyday activities other children find easy. He used to be afraid to read and write, often becoming distraught with the difficulties he faced. It’s fantastic to see him be able to read kids menus and streets signs; write birthday cards and thank you notes, and have a go at the science books he loves. As a result he now has more independence and a greater belief in his own abilities. I do have to say that all three are still cheeky, demanding and boisterous little mini-me’s, but that’s all part of the fun.