Let’s Talk About…Disability Discrimination in Education

May 19, 2022 Chopsy Baby

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When it comes to getting help with the Education Health and Care Plan (EHCP) process, there is a lot of help and support out there. You can join parent carer Facebook groups to get free peer support, access IPSEA or SOS SEN, ask questions on Twitter, buy guides, speak to your local Sendiass service, hire professional legal help, get Legal Aid or buy a book.

This does not mean it’s an easy process for everyone. It can be a stressful experience taking your Local Authority to the First-tier Tribunal (Special Educational Needs and Disability) – more commonly known as SENDIST. But the process is a transparent one with little fear of retribution discussing the situation with other people.

The same cannot be said for taking a Disability Discrimination case to SENDIST. There is one rule about disability discrimination cases. You can’t talk about them publicly. This means when it comes to accessing peer support in the same manner as EHCPs, it has to be done off grid in hushed tones and often by word-of-mouth. The principle of Open Justice doesn’t count. From the moment an appeal is registered, that’s it. You’re effectively on your own.

Disability Discrimination cases are complex, far more so than EHCP tribunals. If you want peer support, you have to cast your net for it ahead of registering the case with SENDIST.

This denies families a huge amount of help and support from others who have probably been in the same situation but also cannot discuss it. Legal help with Disability Discrimination is hugely expensive. To run an entire case would come in the tens of thousands of pounds. And it would take brave or foolish person or a combination of the both to wade into one of these battles having no idea what you’re actually doing. That’s not to say it’s impossible, but if you want the odds to be forever in your favour, getting help before even submitting the SEND4A is something you really ought to do.

It makes sense to keep Disability Discrimination cases confidential – to a certain extent. At the heart of the claim is a vulnerable disabled child or young person. Their disability is laid bare alongside events leading up to the claim.

But this is also where the child or young person is further disadvantaged. Those who have experienced the discrimination – in often deeply traumatic experiences inflicted upon them by a Responsible Body oft represented by a War Cabinet of solicitors and a barrister – are also unable to talk about their experience. This is to anyone, including medical and social care professionals who may be left helping them pick up the pieces of their shattered lives following the impact discriminatory education settings have had on them.

The length and depth of discrimination that can be inflicted on children with Special Educational Needs and Disabilities (Send) can be so horrific and take place over long periods of time, meaning it can be very difficult for non-disabled or non-disadvantaged people to begin to wrap their heads around it. After all, schools are there to educate, support and help children flourish. It must surely be the fault of the difficult parent. The failing family. The badly behaved child. Would co-workers and a professional peer group really treat disabled children in this way? The unfortunate answer is yes.

It’s hard to imagine school staff shouting in the faces of highly anxious disabled children. Hard to imagine children being given detentions for work they are unable to access, sent to separated learning units where they must sit in silence and face walls simply for having hearing difficulties, processing issues, being autistic or anxious. It’s hard to believe a school fully funded to implement an EHCP wouldn’t bother doing it, then simply off rolling the pupil. Would schools really stoop to unlawfully excluding children because they are disabled? They couldn’t possibly could they?

It’s so hard to believe these tip-of-the-iceberg discriminatory acts happen that many professionals just don’t believe it. It feeds into the Blame The Family Game Show where every professional is the winner and the kid drops out of education – sometimes for years – whilst being shown the speed boat of ‘what they could have won’ as they are booted out the exit.

And this is why transparency is desperately needed in the Disability Discrimination process at SENDIST. Combative cases Responsible Bodies are determined not to lose means that in some cases, there is no level to which they will not stoop. Evidence might be manipulated. Lies are told. Witnesses are coached and it makes no bearing on whether that witness might have not even met the family in the first place. They are rolled out to be another person in the school’s defense, rather like a line of riot police beating their shields as they move forward. Except it’s all done in a really middle class way with posh words you have to Google and staying calm if you have ADHD and you hear one lie too many spill from the lips of academy defiance.

It’s not only unlawful, it’s a safeguarding issue. If a school presents a Senior Leadership Team hellbent on winning, going to every means available, including dishonesty, and come off it, you know you’re lying when you do it, how then can we trust the safeguarding going on in schools? Adults prepared to lie in tribunal to actual real life judges simply cannot be trusted with the safeguarding of the pupils they are in charge of every day.

School staff, especially at Senior Leadership Level are often involved in local education boards and setting policies. The local Schools Forum, the local learning partnership or education boards tasked with developing education strategies in cash-strapped Local Authorities looking to eject sandbags from the High Needs Budget. Law breaking education blockers tend to seep everywhere, sticking to positions of power and carving out more like sticky sap from a tree.

This is even before you even get to how difficult the academy system is, where there is little accountability and neither families nor Local Authorities seem able to get them to meet their legal duties. Communicating with them or even negotiating provision is like like trying to talk through the metal shutters of a closed shop.

Whilst confidentiality is there to protect the child, it also silences the child. A young person who has lived through the experience of discrimination is ruled by a judge to keep quiet, further compounding their truama. The school is able to sweep the discrimination under the carpet. They are free to be gleeful that it’s shrouded in secrecy and promote each other as much as they like, despite being responsible for destroying the education of vulnerable children and destroying their mental health. It’s a sordid state of affairs which ultimately allows the discriminators to win and impacts on the wider disabled community because there is no Open Justice.

Does this kind of thing happen in Bristol? Well it certainly diddly does, but you will never find evidence of it. The evidence is in the children driven to suicidal levels of despair. The ones who are the statistics on the Department for Education’s Where The Hell Are The EHCP Kids? data released each spring.

You might ask – Has my child’s school got a disability discrimination ruling against it? – The answer is you won’t know. The only ones who will know are the ones who are not allowed to talk about it. You could be well sending your child into the lion’s den and until it all goes to hell, you just won’t know. You’ll certainly know when you get there. You’ll meet the Usual Suspects: Child Blame, Family Blame, Mum’s Anxious, Fabricated and Induced Illness, Troubled Families, Off Rolling and a barrister pointing the metaphorical barrel of a shotgun at you.

For more information about making a disability discrimination claim through Sendist, visit: https://www.gov.uk/government/publications/form-send4a-disability-discrimination-claim-by-a-parent

This comment piece was written by Jen Smith. Reviewers have called her:

‘Mum’s On Twitter Again’
‘I don’t agree, at no point did we send your child home in an illegal exclusion’
‘You hear a lot don’t you Miss Smith’
and ‘Mum’s Anxiety’