WARNING: as regards the SEN Framework, this page is not yet updated for new legislation and for the Special Educational Needs and Disabilities Code of Practice (SEND) applying in England from 1st September 2014. See the BSA website on the new SEN Code of Practice at www.stammering.org/send
- Resolution of issues will nearly always be informal, by talking with the school.
- The British Stammering Association has substantial resources for parents, and a helpline (link to stammering.org).
- Any tribunal claim on stammering will normally need to be for rights under Equality Act 2010, rather than the SEN framework.
- Even on an Equality Act claim, the tribunal cannot award financial compensation.
Where a child requires support at school because of a stammer, this will nearly always be resolved informally. There is detailed information on the British Stammering Association’s Expert Parent website: www.stammeringineducation.net/expertparent.
That website has a section on ‘How to get support for learning for your …child who stammers’ (and also ‘When you have to make a formal complaint’). Where there are problems resolving an issue with a school, support may be available from the BSA helpline (link to stammering.org).
Discussion with a school will often be within the Special Educational Needs (SEN) framework (if it is within any framework at all), rather than Equality Act 2010. The SEN framework provides a graduated response structure for supporting a child with learning difficulties, which will often include a stammer. Again, the Expert Parent website (www.stammeringineducation.net/expertparent) deals with the SEN framework in relation to stammering.
Legal enforcement: Equality Act 2010
- 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 below Special Educational Needs: 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
Links to further resources are:
- EHRC guidance on Equality Act enforcement: www.equalityhumanrights.com/advice-and-guidance/education-providers-schools-guidance/dispute-resolution-and-enforcement/;
- the websites of the relevant tribunals (below).
The tribunal responsible for a complaint of disability discrimination against a pupil depends on the country:
- in England complaints go to the First-tier Tribunal: www.justice.gov.uk/tribunals/send.
- in Wales there is a separate SEN Tribunal: sentw.gov.uk.
- in Scotland cases go to the Additional Support Needs Tribunal for Scotland (ASNTS): www.asntscotland.gov.uk. See Schools to face more disability discrimination claims after Friday (link to macroberts.com).
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 EHRC guidance and from para 8.26 of the Schools Technical Guidance – England. This page does not deal with appeal panels. (Confused about different kinds of schools legally? – join the club. Differences are outlined at davidwolfe.org.uk/wordpress/, eg a ‘free school’ is legally an ‘academy’.)
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.
In England and Wales the claim must be brought by the parent. In Scotland a claim can be brought either by the parent, or by the young person if s/he has legal capacity (EqA Sch 17 para 8).
Asking questions can be very useful to help a claimant decide whether it is worth bringing a case in the first place, and if so how to formulate and present a case most effectively. It may also in some cases encourage a school to settle, if answering the questions makes it apparent that they will have difficulty defending the case. The formal ‘questions procedure’ has been abolished for discrimination which happened on or after 6th April 2014, but one can still ask questions. See Proving discrimination: Asking questions.
On the formal questions procedure specifically in schools (for discrimination before 6th April 2014, see from para 8.24 of the Schools Technical Guidance – England.
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.
The tribunal cannot award financial compensation (EqA Sch 17 para 5).
8.24 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.
8.25 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 8.24 and 8.25 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 (pdf, link to senlegal.co.uk), 2013, 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.
Press release (pdf, link to senlegal.co.uk), 16/1/13. See also this case under the Objective justification test.