Legal Question

Despite legal frameworks designed to ensure that Disabled children can attend mainstream schools, many still face significant barriers and are refused admission. This is particularly an issue for Disabled children labelled with “complex needs or challenging behaviours”. Schools often refuse admission by claiming they cannot meet the specific needs. This situation raises significant legal and ethical questions for parents of Disabled children, especially concerning the legality of such refusals.

How can these issues be challenged, in particular:

• What is the legal position on refusal due to the perceived needs of Disabled children?
• Why are some schools still allowed to act unlawfully?
• Why are some schools still failing to meet their legal obligations to provide inclusive education within mainstream schools, despite existing laws?
• How can Disabled people, Disabled People’s Movement campaigners, and parents of Disabled children effectively campaign to challenge unlawful rejections, to ensure their child’s legal right to inclusive education in mainstream settings?

As a general principle, Local Authorities (LAs) are required to ensure that Disabled children are educated in mainstream school. This is known as the mainstream presumption and includes learners with special educational needs as set out in the Children and Families Act (CFA) 2014. All children have the right to mainstream education if preferred by their parents (subject to a few exceptions which are detailed below).

School admissions authorities cannot discriminate against a child because they have a disability. They are legally required to consider applications from all parents and children, and cannot refuse admission to a child because they consider they are unable to meet their needs.

If a child has an Education, Health and Care Plan (EHCP) and the parents seek a mainstream placement, this can only be denied if the placement would be incompatible with the education of others, and no reasonable steps can be taken to avoid this (s. 33 CFA 2014). This is a deliberately high threshold, and the focus should be on removing any barriers to the child accessing that school place.

Children without an EHCP must be admitted to a mainstream setting (s. 34(2) CFA 2014) unless for example the parents choose to fund attendance at an independent school or electively home educate their child. Learners without an EHCP can only be placed in alternative provision in extremely limited circumstances.

Since 2002, every school must have an accessibility plan to eliminate barriers to Disabled individuals from accessing their preferred school. This document should be available directly from the education providers.

Discriminating against learners because of disability is contrary to the protections afforded under the Equality Act 2010, which identifies that discrimination occurs if someone is treated unfairly due to something arising from their disability, and that treatment is not ‘a proportionate means of achieving a legitimate aim’. Mainstream schools also have a Public Sector Equality Duty to prevent discrimination.

As Education Law providers, we all too often see instances of schools failing Disabled children. Unfortunately, it is often up to parents to challenge the actions of LAs or schools.

If the child has an EHCP, an action could be brought to the SEND Tribunal to challenge the school named in the EHCP. The legal presumption in favour of a mainstream placement is strong, and in our experience appeals of this nature for mainstream placements frequently succeed.

Applications for Judicial Review, made to the High Court, can be submitted against school admissions decisions in some instances. The Court will consider the legality of any decision to refuse admission, for example if a discriminatory policy has been applied.

It is also possible to bring disability discrimination claims against schools in the SEND Tribunal.

In the first instance, parents should voice their concerns and request a rational explanation from the school. If informal resolution fails, legal advice should be sought regarding action that could be taken.

This legal question was posed by ALLFIE’s Michelle Daley and Catherine Bebbington.

It was answered by Beverley Simpson and Lucy Atherton, Simpson Millar Solicitors.