Q:
Can I take legal action against a private (independent) mainstream school that has refused my 3 year old daughter (sibling) a place due to her SEN needs in speech and language?
Summarised version
I need some advice on what options I can explore regarding an independent mainstream school refusing my 3yr old a place in the school her older sister goes to. Are there any legal options that can be explored please? They are capable of meeting her needs (speech and language delay) as they have done and are doing this for other SEN children with more complex needs. They claim that they are at SEN capacity due to all the other SEN children they are supporting. They are also claiming they don’t have the physical space for an additional teacher to support her. Do I have any legal grounds to explore at all? The school was oversubscribed and I suspect that is the true reason they’ve refused my daughter a spot despite her being a sibling. According to the nursery she attends which is linked to the school, her needs are not extensive enough for an EHCP. I’d appreciate any guidance on this please.
All I want is for her to be offered a place in the school, the teachers are truly lovely, it's the head teacher that is a bit cold.
Detailed Version
I have two daughters, a 3yo and a 7yo. My 3yo is on the ASD pathway with a 3yr waiting list. She has speech and language delays - receptive and expressive. No other significant concerns or differences, she’s social, gets on well with people, toilet trained etc. She was 5 months old when her father died, I have no idea what impact that might have had. She didn’t recognise her name until well after she turned 2. She’s now 3y 6mo and has the communication age of a 2 year old. She goes to a nursery that is joined to an independent school - they have the same name, proprietor and head teacher/director running both institutions.
At the nursery, my daughter is on a personalised plan and receives recommendation from an independent speech therapist. Regarding milestones, she is delayed in all things related to language and communication - her speaking, listening & understanding are all delayed. Her nursery does not think her situation is serious enough for an EHCP. I’m applying for one on my own but they aren’t being optimistic at all.
My older daughter goes to the independent mainstream primary school linked to the nursery. She’s settled there for over 2 years now. We had to relocate back to the UK after my husband died while we were abroad. It was extremely tough for all of us. This school has been her constant in the last two years. The school have SEN children with some having joined the school with their ASD diagnosis confirmed, some have more complex needs and require 121 support, some have speech and language needs and a whole host of well managed support exists in the school. On average about 1 child per class has additional needs. The additional support has all been paid for by the parents, in addition to the school fees.
When my younger daughter went for her assessment visit in Oct 2023, the school was well aware of her communication gaps - from the nursery report. The head teacher mentioned she could not offer her a space without knowing what her needs were. She said she would reserve a spot for her and wait till July 2024 to assess and work out what additional support she would need.
In June 2024, my daughter was called in for her second assessment and before the end of the assessment, the teacher was already preparing me for a rejection. The head teacher walked in later and without any consultation with the teacher, also started preparing me for a rejection. Almost like the decision was made before seeing her. The head teacher was explaining how she would get better support in a state school and that the school was not equipped to manage her needs. I then let her know I was aware of people in the school with more complex needs that were being managed extremely well. She then changed her tune to say the school is a small school and they wouldn’t have the physical space to accommodate another teacher to support my daughter's needs. That the rest of the children in the class were so far ahead of her and it just wouldn’t work out.
I firmly believe the reason my daughter has been denied a space is because of her disability and the fact that the school was over subscribed. They would rather deal with an easy neurotypical child. My daughter is a sibling of a current student, should she not have been considered fairly first? The school is very capable of meeting my daughters needs. They simply would rather not deal with the hassle because they have neurotypical children they’d rather give the spot to. Even though they have no previous ties to the school.
Is this discrimination? Can I fight this? Do I have a legal grounds? I tried to appeal the decision directly with the head teacher but she is not budging. What would you advise please?
Thank you.
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 17 Sep 2024
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Yes
Other
TD,
You do have a possible course of action. Whilst we cannot give legal advice, the following may assist.
There is a lot of information here, but I have produced the following summary, which I believe is reasonable:
You have two daughters, aged 3 and 7. Your 3-year-old is on the ASD pathway with delayed speech and language, but is otherwise socially adept and toilet-trained. Her nursery has a personalised plan, but they do not believe her situation warrants an EHCP, despite your independent application. Your older daughter attends an independent school, which rejected your younger daughter after two assessments, citing her communication needs. The school, it seems, is also oversubscribed. You believe this is due to her disability, despite the school having children with similar or more complex needs. You are seeking advice on whether this could be considered discrimination and how to proceed legally.
The relevant statute is the Equality Act 2010, specifically as it relates to the protected characteristic of disability.
Firstly, you need to establish whether your daughter has a disability that satisfies the definition in s 6 the Equality Act 2010. The following may be of assistance:
01.02 Is there a “test” to prove that my child has a disability?
I suggest you also download a copy of:
Which is in the process of being updated.
If a child is disabled, they must not be discriminated against in the arrangements a school makes when offering admission. For avoidance of doubt, this includes independent/private schools. That said, a number of exceptions apply, including ‘permitted forms of selection’, which vary depending on the type of school. Independent schools, like the one you mentioned, often insist on a certain level of ability or aptitude.
From the information given, it appears the reasons for your daughter's non-acceptance are related to her level of need, as well as the school being oversubscribed. However, it is unclear if you have evidence to substantiate this. Clarifying this point would be very helpful.
You also mentioned an assessment. Whilst the school is entitled to assess for core competencies, they must have taken reasonable steps to ensure that any disadvantage your daughter faced as a result of her impairments/ difficulties was avoided. A failure in this regard amounts to disability discrimination.
If a disabled child is found not to have been given a place at an independent school because of their disability and none of the exceptions apply, the First-tier Tribunal (FtT) can address this by making any order it sees fit, which could include ordering the school to admit the child.
In summary, it is open for a parent to challenge a failure to admit a child if it is tainted by discrimination related to the protected characteristic of disability. This would be done by a CLAIM to the First-tier Tribunal (Special Educational Needs and Disability) . That said, evidence and establishing causation are vital in establishing the validity of a claim.
There is nothing to prevent a child attending an independent/private school from having an EHCp, nor do they need a diagnosis to commence an EHC needs assessment (the precursor to an EHCp). As you may be aware, in independent/private schools, unlike mainstream maintained schools or academies, SEN (Special Educational Needs) support does not formally exist, although many schools mimic this arrangement. In such cases, the school is expected to cover the costs of meeting a child's special educational needs up to a notional amount of £6,000.Perhaps obtaining more expert evidence could assist you in determining whether the relevant test for commencing an EHC needs assessment has been met. This site contains many answers to questions related to this process, but please feel free to post any additional questions you may have on this topic.
The above is a rather brief response, and I look forward to reading the contributions of others.
Sean Kennedy
Talem Law
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