Q:

Can a claim of discrimination be made against an LA for failing to make reasonable adjustments when it does not want to pay for something? My autistic ...

Can a claim of discrimination be made against an LA for failing to make reasonable adjustments when it does not want to pay for something? My autistic son has an EHCP where a provision was approved by the LA Complex Needs Panel. The LA did not follow the advice of its own panel and did not inform the parents or school of the increased provision. The LA also did not issue a new EHCP which prohibited the family from appealing to the SEND tribunal. In another example, the LA consulted with a new school but refused to pay for his provision after the school accepted my son. My understanding is that if an LA mandated x amount of hours for speech and language therapy in an EHCP and the school did not implement it this would be discrimination. Can the same be true for The LA? Can the LA be held to account for failure to support a child with SEN where the provision is considered reasonable?

tribunal Discrimination Equality Act 2010 (EqA2010)
WP

Whitehaven Parent
12 Oct 2022

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A: SenseCheck

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  • 14 Oct 2022

  • No

    Simple

    There is a lot here, so I will give you a summary and then I would ask you to look at the Noddy Guide which covers these issues well.

    I think there are a few issues here:

    1. Disagreement over the contents of  section F of an EHCp. This is resolved by making an appeal to the First-tier Tribunal (Special Educational Needs and Disability) having first gone through mediation if the parent or young person wishes to do so.

     

    2.Failure to adhere to timescales and procedures (for reviewing and amending an EHCp) set out in the  Special Educational Needs and Disability Regulations 2014 are usually dealt with by way of using the LA formal complaints procedure – then going to the LG Ombudsman if need be.

     

    3. If an EHCp is not amended following a statutory review, an appeal to the First-tier Tribunal (Special Educational Needs and Disability) can be made. The previous system required an amendment, but this was changed in 2010.

     

    4. Section 42 The Children and Families Act 2014 places a duty on the LA to secure special educational provision 

     

     https://www.legislation.gov.uk/ukpga/2014/6/section/42/enacted

    If this does not happen, then there are broadly two options:

                

    1. Use the LA’s formal complaints procedure and the go to the LG Ombudsman if need be
    2. Seek advice from a practicing lawyer about judicially reviewing the LA

     

    Hence, if I have understood your question correctly, The Equality Act 2010  - which is where the duty to make adjustments is contained - does not have a role in the above as far as I can see. The relevant statue (and associated regulations) is the Children and Families Act 2014.

     

    I look forward to reading any other responses. 

    Sean Kennedy

    Sean Kennedy
    Talem Law

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