Q:
My autistic daughter attends a private school, they have said that she can only proceed to year 10 if she does 7 GCSEs. Could this be considered descriminatory if other options to allow her to attempt 8 GCSEs haven't been considered?
My 14 year old daughter is autistic and attends a highly academic all girls private school. She is academically able, but has had a very difficult year 9.
She became very unwell with depression around Christmas, not able to attend school but received treatment and has gradually returned to school. She also had problems with attendance in year 7.
Her school have been brilliant on a day to day basis, allowing her the flexibility to recover and gradually increase attendance in lessons.
However, they have also been actively harmful by not giving her clarity about whether she would be able to remain at the school or progress with the rest of her peer group to year 10. Before the Easter holidays a comment was put in her individual education plan, that on consultation with subject heads that 'A has missed too much content in maths, biology, chemistry and physics to successfully proceed to year 10.' We highlighted that as A's struggles are predominantly social, resitting a year would not be in her best interests.
No specific catch up support was given by school, apart from a textbook and workbooks. She has spent time in the learning support area for self directed learning but has not had specific input beyond a daily check in. She is not currently doing a full timetable as made the decision to prioritise her GCSE subjects as she was aware that she had missed a lot of work. Apart from allowing her flexibility, and timetable reduction, limited reasonable adjustments have been put in place. We have requested that she be observed in school by an external professional (a private psychologist, working within a reputable local private company) to give additional specialist advice but this has been refused by school.
This has made it very hard for her and the stress has impacted on both her ability to attend school as well as study for exams. Despite this she completed and passed exams in the 8 subjects she hoped to take for GCSE. Her results were not at the level she was used to but were not the worst in her year.
A has a descision to issue an EHCP but doesn't have an EP assessment or a draft EHCP. School had suggested that she didn't require an EHCP and that she doesn't require further support.
She would usually take 9 GCSEs but it was suggested that she dropped a modern foreign language so she could have time in learning support. She agreed with this.
Her overall attendance this year was 44% but has increased to between 65-80% (in part due to physical health problems, for which she is now recieving treatment.)
She wishes to attempt 8 GCSEs and if only permitted to take 7 (+ an HPQ, considered half a GCSE if her attendance improves) will undertake an additional GCSE outside of school.
The outcome from school has stated that she can progress to year 10 but will only be permitted to do 7 GCSEs (+ HPQ if attendance increases.) It was noted that she has made good progress but still has gaps in her knowledge and areas to catch up with. No specific plan has been made to support her to catch up with the work she has missed.
It is stated that if her attendance decreases as a reasonable adjustment she will be permitted to do fewer GCSEs.
She is also allowed flexibility if she wishes to do PE, however it is stated this would mean the school would not have evidence for a risk assessment to allow her to attend DofE expeditions.
She was not allowed to attend her DofE practice expedition before Easter - it was offered that if she was driven to the venue she could take part in the first day (if she proved to a teacher she had eaten lunch) but would not be allowed to stay overnight or attend the second day meaning it would not qualify as a practice expedition (even though we offered to stay nearby to collect her if needed.) This was despite a letter from her psychiatrist saying that her mental state had improved and she had no concerns, as well as supporting from a family support worker. A takes part in multiple activities outside school including long hikes (and will do a private DofE expedition in the summer.)
I am concerned that the school is not considering all reasonable adjustments to support my daughter's wellbeing and her desire to do well academically. It feels that although concessions are being made the only real option is to limit her timetable and opportunities without consideration of all other reasonable means to support her. The school has also not acknowledged external advice including from her psychiatrist. I'm also concerned that school is using reasonable adjustments as a threat to try and get her to comply rather than as a way to allow her to overcome the difficulties related to her disability.
Would there be grounds to consider indirect discrimination? I would be keen to remove my daughter from the school, however she is wants to remain there.
I would be keen for her to start a course of 8 GCSEs, with a plan to drop one if it was too much. This is because her health is improving and therefore her attendance is also likely to be better. I feel this would be the least restrictive option as it would be impossible for her to increase the number of GCSEs she takes once the course has started.
I have reviewed the complaints policy but haven't yet put in a formal complaint as I have been told that school are giving concessions so I should not be confrontational.
It is difficult to communicate with school the only opportunity to speak to the team is in formal meetings which are very stressful. I am allowed to email school but it is often a one way communication.
I am autistic and it has taken a long time for school to be open with what will be discussed in meetings before they occur. This has meant that I have become very distressed and unable to participate fully.
A: SenseCheck
- 2 Yes
- 0 No
- 0 Other
- 06 Jul 2023
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Yes
Simple
I would like to provide some additional guidance specific to your situation, in addition to the response provided in the Disability Law in Education No-Nonsense Guide.
Firstly, let's address the issue of the number of GCSEs your daughter is allowed to take. You could possibly consider suggesting further reasonable adjustments that the School could make, which would align with their obligations under the Equality Act 2010. Suggestions could possible include more frequent check-ins when your daughter is using the study space, developing a communication tool for her to signal when she feels stressed to a trusted staff member, or allowing her to sit an early mock exam for her 8th GCSE to assess her ability to handle eight subjects. This would ensure that a decision can be made in a timely manner.
However, it's worth noting that concerns raised above might be better addressed by clarifying where you currently stand in the EHCP (Education, Health, and Care plan) process, rather than pursuing a disability discrimination claim. By doing so, you can focus on resolving the clear ambiguity and receive specific and tailored input to meet daughter's special educational needs. Further the document can also address any health and social care needs she may have. These aspects can be addressed through an EHC needs assessment and a well-drafted EHC plan. Furthermore, it's important to know that you have the right to request input from an external psychologist as part of the EHC needs assessment process, as outlined in the 2014 SEND Regs r6(1)(h).
Taking a proactive approach, it would be advisable to contact the SEN lead (or SENCO) at your daughter's school. Engage in a conversation with them, seeking their support in the EHCP process and discussing the possibility of implementing the reasonable adjustments mentioned earlier.
By following these steps, you can aim to find a resolution that addresses your concerns and provides the necessary support for your daughter.
Sean Kennedy
Talem Law - 27 Jun 2023
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Yes
Complex
Thank you for this question – the core of which concerns the possibility of a disability discrimination claim/s against your daughter’s school. There are seemingly two potential discriminatory actions: the reduced number of GCSE subjects your daughter is being permitted to take; and, the exclusion of your daughter from her DofE trip.
In order to bring a disability discrimination claim, the first step is to make sure your child meets the legal definition of ‘disability’, and the legal test for this is found in EqA2010 s6. This helpful Q+A from our Disability Law in Education No-Nonsense Guide breaks down EqA2010 s6 into its key elements: 01.02 Is there a “test” to prove that my child has a disability?.
Your question mentions that your daughter is awaiting an educational psychologist (EP) assessment, which could suggest that the decision has been made to assess her for an EHCP – which is not the same as a decision being made to issue her an EHCP. It is worth seeking clarity from your LA on this point, and reminding the LA of the 20 week statutory timetable from the date of your request for an EHCP assessment (week 0) to a final EHCP plan being issued (week 20). This is especially vital in light of the position of the school, who may be asked to input into an assessment.
While the EHCP process runs, this Q+A reminds us that parents can rely on the Equality Act framework in addition to the SEN framework (which is primarily found in the CFA2014). A central element of the Equality Act framework is, of course, the positive duty to make reasonable adjustments: 02.02 If I want my disabled child to have all the support they need in school, do I just rely on the special educational needs framework? And question: 04.06 Do the protections contained in Equality Act 2010 extend to disable children who attend private school? also reminds us that the protections do extend to students at independent schools.
In terms of the duty to make reasonable adjustments, you might want to read our Q+A on the role of the school in creating a level playing field. This Q+A states, in part that ‘this means modifying procedures or processes or providing auxiliary aids to a disabled pupil or student to avoid them being disadvantaged as result of their impairments when compared to those who are not disabled and attempt to place them on a level playing field’. Check out the full answer here: 04.04 Does a school have to do anything to create a level playing field for my child when compared to other children who are not disabled?
In terms of next steps, we would advise you read the following Q+A on tribunal procedure: 12.01 Can I do anything if my child has been the subject of disability discrimination in school? Disability discrimination claims are heard by the SEND tribunal. The Q+A lays out the process to bring a claim to the SEND tribunal, and the actions the Tribunal may take if the claim is successful. Please do bear in mind the limitation period for a disability discrimination claim: your claim must be submitted within six months of the discrimination.
Briefly, I note that you have an ASD diagnosis. The current Q+As in our Guide focus on the protections of the Equality Act for pupils; however, you may wish to consider EqA2010 s.29 on the duties placed upon service providers by the Equality Act framework, including the duty to make reasonable adjustments EqA2010 s29(7) – which arguably may include the circulation of an agenda in advance.
Disability Law in Education No-nonsense Guide
Authors: Mandy Aulak, Sean Kennedy
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