It all depends on the SEN and disability discrimination regimes. David Ruebain, Chris Barnett and David Wolfe examine a recent case that sets out some limits

The Court of Appeal handed down judgment in the case of Ms K v The School and Special Educational Needs tribunal in March 2007. The case was about the obligations of a school to meet the needs of a child who required personal care during school hours. The court’s decision clarified some, but not all, of the issues that arise in this area. Here, we will analyse the decision and look at its implication for schools.

THE ISSUES

The appeal looked at the interaction between the school’s duties under the Disability Discrimination Act 1995 (the appeal arose from the rejection of a disability discrimination claim by SENDIST) and the duties of the school and local authority in relation to children with special educational needs under Part 4 of the Education Act 1996.

THE CASE OF ‘A’

Ms K’s son, A, is paraplegic and doubly incontinent. From time to time, he needs assistance in cleaning and changing himself after a bowel or bladder accident. When he has an accident in school, he must have such assistance, or go home. He has a statement of SEN maintained by his local authority, which, at the time of the claim to the tribunal, provided 34 hours a week of learning support, to be deployed flexibly by the school. Initially, the school arranged for a member of staff to clean and change A as necessary. But after that member of staff injured her back while cleaning A, the school did not allow staff to change him any more, and sent him home when he had a bowel accident. It seems that the school did not consider allocating more than one member of staff to assisting A (which the statement would plainly have permitted).

THE CLAIM

Ms K brought a discrimination claim before the SENDIST. She complained of:

  • less favourable treatment for a reason related to her son’s disability (he was sent home)
  • failure to take reasonable steps (deploying staff, particularly those funded under his statement) to clean and change him.

The tribunal rejected the claim and the High Court dismissed Ms K’s appeal.

QUESTIONS ON APPEAL

Ms K then took her case to the Court of Appeal. The appeal raised a number of important questions on the interpretation of the Disability Discrimination Act, as it applies to schools: 1.  Schools may not discriminate in relation to ‘education or associated services’. Did cleaning and changing A amount to ‘education or associated services’? 2.  Schools must take reasonable steps to prevent disabled pupils being placed at a disadvantage. But they are not required to provide ‘auxiliary aids or services’. Did cleaning and changing A amount to this? 3.  Schools can justify behaviour that would otherwise be unlawful discrimination. Did the school have a reason that justified its not cleaning and changing A, sending him home instead? The tribunal, and the judge in the High Court, answered ‘no’ to the first two questions, and ‘yes’ to the third. For her appeal to succeed, Ms K had to show the Court of Appeal that all three of these answers were wrong.

What did the Court of Appeal say?

Ms K did not succeed. The Court of Appeal decided that the answer to the third question was ‘yes’ — that the school was, in the circumstances, legally justified in not cleaning and changing A (particularly following the injury to the staff member who changed him). The Court of Appeal decided, therefore, that it need not consider the first two questions (because whatever the answer, the appeal would fail). The court said that the arguments on these two points were ‘interesting’ and ‘powerful’ and that they would have been difficult to resolve, had that been necessary. The court did give some indications as to its thoughts on the first two questions (which we will outline below). These indications could bear on future cases: schools should keep them in mind when considering what personal care they can (or must) give to children.

‘EDUCATION AND ASSOCIATED SERVICES’

The High Court judge had said: ‘Education is not defined in the Act. Its ordinary dictionary meaning is: Systematic instruction, schooling or training given to the young … in preparation for life. ‘It [cleaning and changing A] is clearly not that, nor is it an associated service. At its highest, it is what must be done to ensure for his own health and dignity, and the comfort of other pupils and staff, that he can be taught in class. ‘It does not advance his understanding of topics taught at school, or his ability to learn or to enjoy the other facilities of the school, such as sporting activities. It is personal care, not education or services associated with education.’

‘Special educational provision’

The High Court judge did not stop there. He went on to say that not only did cleaning and changing A not fall into the remit of ‘education or associated services’ for the purposes of the Disability Discrimination Act, but that it was also not a special educational provision (SEP) for the purposes of Part 4 of the Education Act. This was confusing. Schools commonly make a great deal of provision that is not part of the curriculum. Indeed, in the context of Part 4 Education Act 1996, the Court of Appeal has long ago rejected a narrow interpretation of the term ‘educational’ — so that ‘special educational provision’ can include things that might at first blush not seem like education — such as occupational therapy, or physiotherapy. In A’s case, it was  particularly confusing because, as above, his statement set out in Part 3 (detailing special educational provision) that this included, potentially, cleaning and changing A after a bowel accident.

What did the Court of Appeal say?

The Court of Appeal did not directly answer the question of whether the High Court judge was wrong (for the reasons given above). It did, however, cast doubt on his decision, saying: ‘It is, therefore, clear beyond peradventure that from the local authority’s perspective, cleaning and changing A after a bowel accident comes within the definition of education and associated services as well as representing SEP. ‘Thus, for example, were this court to find that changing and cleaning A was not SEP, that finding might cast unwanted doubt on the provision contained in Part 3 of the SSEN [statement]. That, it seems to me, is something to be avoided if at all possible.’ The judgment, therefore, supports the argument that personal care, including cleaning and changing after a bowel accident, can be ‘education or associated services’ as well as special educational provision within a statement. The question that then arises is whether such cleaning and changing is also an ‘auxiliary aid or service’ and so excluded from the duty to make reasonable adjustments.

RELATIONSHIP BETWEEN SEN AND ‘REASONABLE STEPS’

The Disability Rights Commission’s code of practice for schools suggests that ‘auxiliary aids and services’ corresponds with the special educational provision that a child should receive under the SEN regime. The tribunal, and the High Court, essentially agreed with this suggestion, making a clear distinction between obligations owed under the different regimes.

What did the Court of Appeal say?

The Court of Appeal, however, rejected such a clear-cut boundary, saying: ‘The school had complementary duties towards A. The first set of duties arose under [the Education Act 1996] and A’s [statement]. ‘The second and complementary set of duties arose under the Disability Discrimination Act 1995. [There is] no dichotomy or barrier between those two sets of duties.’

Reasonable steps

The court reinforced the complementary nature of the duties. It said that reasonable steps for the school to take under the Disability Discrimination Act regime, rather than arranging the cleaning and changing itself, would be for the school to seek the local authority’s assistance with provision under the SEN regime. The court said: ‘There is no artificial, “hard-edged” division engineered by the court between the duties owed by the school under the Education Act 1996 and Disability Discrimination Act 1995. The two sets of duties complement each other. ‘In the instant case, the duty owed to A by the local authority under the Education Act 1996 could and should have been harnessed by Ms K in co-operation with the school at an early stage to meet A’s Disability Discrimination Act needs.’

IMPLICATIONS FOR SCHOOLS

The Court of Appeal has brought some clarity to the law, but this is within the facts of a particular case, and a number of questions remain to be resolved. The following points can, however, be put forward with some confidence:

  • Personal care, such as assistance with eating, cleaning and changing, and administration of medication, can be special educational provision and therefore included in Part 3 of a statement.
  • The question (within Part 4 of the Disability Discrimination Act) of whether such provision is ‘education’ (itself wide) or ‘education and associated services’ (wider) is likewise primarily a question of fact/judgment for the school/tribunal. But the term is to be understood as meaning those things that schools generally do for children (and not, therefore, things such as the provision of medicines, wheelchairs, and so on).
  • ‘Auxiliary aids and services’ are those things that schools do not generally do — so, for example, it could not be a reasonable step for a school to provide a wheelchair, or medicines (although storage space for the wheelchair, or help with administering the medicine could be) — those are not even ‘associated services’.
  • There is, therefore, potentially a considerable overlap between what can be required under the Disability Discrimination Act and what can be expected under the SEN regime. A particular element of provision could be both SEP and a ‘reasonable step’ (not excluded by the auxiliary aids and services exception).
  • The clue to the boundary of the reasonable step obligation is likely to be in the word ‘reasonable’. If the school can reasonably take the step, then the Disability Discrimination Act is likely to require it to do so.
  • In many (indeed perhaps most) cases it will not be necessary to delineate the obligations in a definitive way, because the disabled child in question will have SEN for which SEP is being made at School Action or School Action Plus — in which case the school will be responsible for the provision under both regimes.
  • The more difficult cases will be where the disabled child has a statement of SEN (such that both the school and the local authority have obligations, and it is important to decide who pays for what) or where the child is disabled but does not have SEN.

Local authority is responsible

The ultimate responsibility for resourcing A’s special educational provision, and for funding the reasonable steps, on the facts of this case, therefore fell on the local authority. As the Court of Appeal concluded: ‘the responsibility for providing the additional facilities required to change and clean A lay with the local authority. The school’s duty was to put the SSEN [the statement] into effect. It was unable to do so, and the only effective way of securing the necessary facilities was to amend the SSEN.’ If, as the Court of Appeal accepted, there is no dividing line between the Disability Discrimination Act and the SEN frameworks, then in principle some provision can be both special educational provision (and thus provided through a statement), and ‘education or associated services’ (not auxiliary aids or services) within the Disability Discrimination Act. Future decisions will have to determine how often, and in what circumstances, this will be the case.

‘REASONABLE ADJUSTMENTS’

The High Court judge had concluded that cleaning and changing was not ‘education or associated services’. He went on to consider the position if he was wrong on that point: ‘I conclude that a SENDIST accurately directing itself as to the law would be bound to conclude that cleaning and changing A was an auxiliary … service. ‘Auxiliary aids and services are things or persons that help. In the context of section 28C [of the Disability Discrimination Act], the help is given for the purpose of education and associated services. ‘A good example is given in the code of practice at paragraph 6.20: a hearing aid is an auxiliary aid. It helps the pupil to hear and so to learn. There is no duty on the school to provide it. ‘Cleaning and changing A is a service. If it is related at all to education and associated services, it can only be so related as an auxiliary service.’

Ms K’s argument

Ms K argued that the steps required here were not excluded by virtue of being ‘auxiliary aids and services’ within the meaning of Disability Discrimination Act s28C(2) because they were themselves education or associated services. What was required was an adjustment (the provision of a reasonable step) in relation to them.

What did the Court of Appeal say?

The Court of Appeal made no real mention in its judgment of the ‘auxiliary aids and services’ issue. Instead, it appears to have accepted that cleaning and changing A amounted to ‘education and associated services’. The court was content to assume that, by not cleaning and changing A, the school did place him at a ‘substantial disadvantage’ in relation to an ‘associated service’. The court concluded, however, that the school had taken all reasonable steps. It effectively decided that the proposed step (cleaning and changing A in school) was unrealistic and unreasonable. But though this was the court’s conclusion on the facts of this case, the tenor of its judgment suggests that, cleaning and changing A (or any other personal care) could have been a reasonable adjustment — and would have been, but for the health and safety effects of such a measure in this case. The natural reading of the court’s decision is, therefore, that, in an appropriate case, it could be reasonable for a school to provide some personal care to a child. It remains unclear, however, in what circumstances such provision would be an ‘auxiliary aid or service’.

David Ruebain and Chris Barnett are partner and paralegal at Levenes Solicitors

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