January 2019 Briefing: Human Rights Legal Challenge

A Disabled pupil and her mother are bringing a legal challenge around inclusive education practices which will be heard in the High Court on the 23^rd and 24^th January 2019. The judge is being asked to decide whether a local authority’s policy around arranging SEND provision complies with their duties to promote advancement of equality of opportunities in the classroom between Disabled and non-disabled pupils under the Equality Act 2010, or is discriminatory contrary to the European Convention on Human Rights and the United Nations’ Convention on the Rights of Persons with Disabilities (UNCRPD).

Under the local authority’s SEND policy, individual mainstream schools are responsible for the recruitment and employment of support staff. There is a risk as a result that Disabled pupils are left without qualified teaching assistants during lessons, if support staff are not recruited in time or are on sick leave, leaving the school for career progression or otherwise absent. They may also be directed by the head to attend to another pupil with different SEN. In the case of the Disabled pupil whose mother is bringing the claim, almost all schools said that they were not suitable for her needs because of a lack of specialist teaching assistants employed by the local authority.

The court is being asked to decide whether the local authority’s policy to delegate its responsibility for the recruitment and employment of visual impairment teaching assistants to individual schools is lawful.

What can you do?

If you are interested in supporting the family’s legal challenge, please feel free to come and join us at the High Court. You can join us:

• Outside the High Court from 10.00am on Wednesday 23^rd January 2019; we will be under the ALLFIE banner and using a megaphone.
• Supporting the family whilst listening to the court case in the court’s wheelchair accessible room, scheduled for Wednesday 23rd and Thursday 24th January 2019. The hearing is scheduled for between 10.30am – 4.00pm

Address: Royal Court of Justice, Strand, London WC2A 2LL (map)

Contact ALLFIE: phone: 0207 737 6030 / mobile: 07856 213 837.

Email: simone.aspis@allfie.org.uk

ALLFIE’s Policy and Campaigns Coordinator Simone Aspis says, “The problem about the presumption of mainstream education is that even though Disabled pupils have the right to be included in mainstream school, there is nothing in law that guides local authorities and schools on arranging SEND provision that enables them to participate in mainstream education on a par with their non-disabled peers.

“The legal challenge comes after the UNCRPD committee found that the UK has systematically violated Disabled pupils’ human right to mainstream education, as set out in UNCRPD Article 24. The committee recognises the fundamental role of SEND provision in promoting Disabled pupils’ human right to mainstream education without discrimination.”

Why is the court case important?

As it stands, the presumption of mainstream education in law provides no guidance on how local authorities should arrange SEND provision for Disabled pupils with education, health and care plans (EHCPs) within mainstream schools. There is no requirement for local authorities to arrange their SEND provision in a way that maximises the participation of Disabled pupils in all aspects of school life.

Why has ALLFIE become involved?

A family approached us to support their court case after visiting our website during the 2018 summer holidays. The court hearing centred around a Disabled pupil with severe visual impairment on an EHCP. There had been real difficulty in recruiting qualified teaching assistants with braille experience for this pupil and in the support which was provided to her by those teaching assistants. As a result, the pupil had not been able to participate in the curriculum on a par with her non-disabled peers. As the family are fully committed to inclusive education, we decided to support their case because the court have been asked to consider whether the local authority’s policy around arranging SEND provision for Disabled pupils with EHCPs is lawful in terms of having regard for:

• The advancement of equality of opportunity between Disabled and non-disabled pupils participating in the school curriculum under the Equality Act Public Sector Equality Duty.
• The promotion of Disabled pupils’ human right to mainstream education free from disability-related discrimination, as set out in the ECHR Protocol Article 2 and Article 14 and UNCRPD Article 24.

What has ALLFIE’s contribution been?

• We have provided the court with a written witness statement outlining our view on how the local authority’s SEND policies must support the participation of Disabled pupils in the school curriculum. We suggested that it would be useful to reference UNCRPD Article 24 because the government has signed and ratified this international treaty.
• We are publicising the case where we can and asking for support.

What would ALLFIE like to achieve from the court case?

The presumption of mainstream education in the Children and Families Act must be interpreted to include participation in the mainstream curriculum. We would like the court to provide useful guidance on how local authorities can both comply with their duties and advance equality of opportunity between Disabled and non-disabled pupils participating in mainstream school curricula, and how they can do so free from disability-related discrimination under the Equality Act, ECHR Protocol 1, Article 2, ECHR Article 14, and UNCRPD Article 24 duties and obligations.