School Resources and the Duty not to Discriminate

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School Resources and the Duty not to Discriminate

School Resources and the Duty not to Discriminate

A recent appeal to the Upper Tribunal (“the UT”) was successful after it was held that a school had discriminated against a child with learning difficulties by refusing to allow him to attend the nursery in the afternoons.

The facts 

In the case of JW v Governing Body of Sinai Jewish Primary School [2019] UKUT 88 (AAC), the child had severe learning difficulties, requiring full time 1:1 support.  He was therefore classed as disabled under the Equality Act 2010.  The child attended the nursery with additional adult support during the mornings; however, the school advised that it was in deficit and did not have sufficient funding to employ an additional teaching assistant to support the child during the afternoons.  Without additional adult support, the school said that they could not keep the child safe and refused to admit him on a full time basis.

The school accepted that the child was being treated less favourably than other children as a result of his disability but argued that this was justified because it constituted a “proportionate means of achieving a legitimate aim”. It argued that the cost of employing another adult to assist the child during the afternoons would have been disproportionate and the additional expenditure required to support the child would have had a detrimental effect on other children in the school.

The original decision 

The appeal was initially heard by the First Tier Tribunal (“FTT”).  The FTT acknowledged the school’s financial difficulties and held that it had not discriminated against the child.

The decision on appeal 

The parents appealed to the UT.  They argued that the school had not made clear to the FTT that its financial position had improved and had it done so, the FTT would have reached a different conclusion.

The UT agreed with the parents and set aside the FTT’s decision.  It accepted that the school’s financial position had improved some months before the hearing and this information should have been put before the FTT.  The FTT had accepted that the school’s deficit meant that funding additional support would have been disproportionate, however, this was not reflective of the school’s actual financial position at the date of the hearing.  The UT held that the FTT should also have considered the importance of the afternoon sessions to the child and the fact that his non-disabled peers were able to attend. 

The school’s reliance on its previous deficit to justify continuing to treat the child unfavourably was wrong and therefore the decision was set aside.

What does this mean for schools and nurseries?

In this case the school erred by relying on its financial position and failing to review it.  In all cases, schools and nurseries are required to make ‘reasonable adjustments’ for pupils and the cost of those adjustments can assist in determining whether they are ‘reasonable’.  However, the school or nursery’s financial position is also a factor in determining whether an adjustment is reasonable.  Where the financial position of a school or nursery makes an adjustment untenable, this must be reviewed if the situation changes - bearing in mind the duty to ensure that disabled children are not placed at a substantial disadvantage compared to their non-disabled peers.

For more information on this article, you can contact Laura Thompson, or you can give us a call on 0345 070 6000.