This page deals with resolving issues both under the SEN framework and under Equality Act 2010.
Key points
- Resolution of issues will nearly always be informal, by talking with the school.
- Any tribunal claim on stammering will normally need to be for rights under the Equality Act 2010, rather than the SEN framework.
- Even on an Equality Act claim, the tribunal cannot award financial compensation.
Informal resolution
Where a child requires support at school because of a stammer, this will nearly always be resolved informally, or it is possible to make a ‘formal’ complaint without taking the matter to court. There is information, though it may be out of date (2009), on the British Stammering Association’s Expert Parent website: expertparent.stammering.org , including a section ‘When you have to make a formal complaint’.
You can take advice from a local IAS service (councilfordisabledchildren.org.uk), formerly Parent Partnership. Support may be available from the BSA helpline (stamma.org).
Discussion with a school may be based on the Special Educational Needs (SEN) framework (if it is within any framework at all), rather than the Equality Act 2010. The SEN framework provides a “graduated approach” of “assess, plan, do, review” for supporting a child with a disability, which will often include a stammer.
Legal enforcement: Equality Act 2010
Introduction
- As regards stammering a tribunal claim normally needs to be for rights under the Equality Act, rather than under the SEN framework. (On the difficulty of claiming for SEN rights, see Special Educational Needs (SEN) and stammering>Tribunal claims.)
- A tribunal cannot award financial compensation. However, it can make other orders to alleviate the effects of the discrimination and reduce any future disadvantage. See below Remedies.
Help and advice
There is a BSA helpline (stamma.org), though this cannot give legal advice. See further sources of help and advice.
Links to further resources are:
- EHRC technical guidance on schools linked off www.equalityhumanrights.com/en/advice-and-guidance/equality-act-technical-guidance, eg Chapter 8 of the technical guidance for schools in England;
- the websites of the relevant tribunals (below).
Tribunals
The tribunal responsible for a complaint of disability discrimination against a pupil under the Equality Act depends on the country (Sch 17 EqA):
- in England complaints go to the First-tier Tribunal (Special Educational Needs and Disability): www.gov.uk/courts-tribunals/first-tier-tribunal-special-educational-needs-and-disability. On how to complain to the tribunal: Complain about a school or childminder (gov.uk).
- in Wales there is a separate SEN Tribunal for Wales: specialeducationalneedstribunal.gov.wales.
- in Scotland cases go to the First-tier tribunal for Scotland (Health and Education Chamber) www.healthandeducationchamber.scot.
The position is different for a complaint about admission to a maintained school or academy in England and Wales. That is dealt with by special appeals panels instead. See eg from para 8.26 of the Schools Technical Guidance – England. Also appeals about exclusion in Wales may have to go an appeal panel. This page does not deal with appeal panels.
The time limit to make a tribunal claim is generally six months (minus one day) from the discrimination. The tribunal has a general discretion to hear claims out of time if the tribunal considers it just and equitable.
There are different rules in different parts of the UK as to how far the young person themself (not just the parents) can bring a claim.
Burden of proof
On burden of proof, including a rule which may shift the burden of proof over to the school, see Proving discrimination: Burden of proof.
Remedies: what can a tribunal order?
The Equality Act says the tribunal cannot award financial compensation (EqA Sch 17 para 5, or para 9 for Scotland) – though it may be possible to argue that breaches human rights law.
8.25 The tribunal may make any order that it thinks appropriate in that individual case, often with the intention of trying to remedy the damage done to the disabled person and to reduce any future disadvantage.
8.26 The tribunal cannot order the payment of compensation. Examples of the type of remedies ordered by the tribunal include:
– A letter of apology
– Staff training
– Changes to policies and procedures
– Additional education for a pupil who has missed education
– An additional school trip for a pupil who has missed a trip
Para 8.25 and 8.26 of Schools Technical Guidance – England.
A tribunal has been willing to make orders which do not benefit the particular disabled pupil:
Parents of C v Trustees of Earl Stanbridge School, [2013] EqLR 304, First-tier tribunal
The school excluded a vulnerable disabled girl in relation to sexual conduct. The tribunal found the school failed to protect her as a victim of sexual abuse by male pupils, and held there had been numerous breaches of Equality Act 2010. Since the pupil had left the school, her interests could not be safeguarded by anything ordered (see from para 176 of decision). However the tribunal made various orders, including that its decision be sent to the Secretary of State for Education and Ofsted, and that advice be obtained from a suitable equalities trainer and autistic spectrum disorders (ASD) trainer.
Case summary: Parents of C v Trustees of Stanbridge Earls School (spencerkeen.co.uk). See also this case under the Objective justification test.
