Ashdown house guilty of discriminating against disabled pupil.

[Masterblaster2]

So awful to think that private schools believe they are "above" the state run schools with regards basic human rights! I saw this today and it really is shocking to read...

www.sinclairslaw.co.uk/news/success-for-parents-in-important-disability-discrimination-appeal/

To clarify (and I am not taking the school's side), the law for independent schools is different to the law for state schools.

The school's appeal seems to have relied to a large extent on a recent decision of the Court of Appeal. This was in an employment case involving the University of Cambridge. The employment tribunal had ordered the university to reinstate a lecturer who had been dismissed. The university declined to do so. The lecturer took the case to the Court of Appeal where she lost. The Court upheld the university's view that the order to reinstate was not enforceable and that she should receive additional compensation instead.

The decision in the Cambridge case came after the original decision in Bobby's case. The school argued that it was significant and meant that the order to reinstate Bobby, provide extra tuition to make up for lost learning and write a letter of apology to him was unenforceable and should not have been made. They also relied on the long standing reluctance of the courts to order that one party to a contract must meet their obligations under the contract rather than simply compensate the other party for their failure to do so.

The Upper Tribunal allowed the school to appeal because they thought the school had a realistic chance of success. The complexity of the legal issues involved is reflected in the fact that the judgement runs to 128 pages.

Having said that, I am pleased that the Upper Tribunal decided in favour of the parents and upheld the original order.

At the end of the day the law is applicable to ALL regardless of status whether your a private school or mainstream it doesn't matter! We're all responsible for our actions in the eyes of our law.At the end of the day Ashdown broke the law and basically violated this child's basic human rights by discriminating against his disability.I can't even bare to look at the case laws as they for me confuse the matter all that matters is that justice for this child and also for those children that may find themselves in a similar situation...they are now protected by law,We also have to take into account the damage that Ashdown have done to this child's future wellbeing.I wish him and his family well for their future.

At the end of the day the law is applicable to ALL regardless of status whether your a private school or mainstream it doesn't matter

I'm afraid that simply isn't true. There are significant differences between the law for state schools and independent schools.

It is worth noting that Ashdown agreed that they had discriminated against Bobby due to his disability. The question (which would have been the same in a state school) was whether their actions were a proportionate means of achieving a legitimate aim. The courts agreed that they had a legitimate aim (protecting the safety of all pupils) but did not agree that their actions were proportionate. The school did not at any stage argue that they were not subject to the relevant law.

The appeal was then about whether or not the order the court had made was enforceable. There were good legal reasons, including the Cambridge case, for believing that, although the courts order would clearly be enforceable against a state school, it might not have been against an independent school. The fact the judge needed 128 pages to dismiss that argument shows that the school had a strong case which they were entitled to bring.

Contrary to what you say, Ashdown did not at any point argue that they were "above" state run schools. They argued that the law applies to them differently. They are correct, although they were wrong about the impact of those differences on this case.

Children with special needs are discriminated against regularly in state schools. They are 6 times more likely to receive a fixed term exclusion, 7 times more likely to be permanently excluded and are more likely to be subject to illegal exclusions. Unfortunately no-one collects statistics for independent schools so there is no way of knowing if they are better or worse than state schools in this respect.

Thank you for the explanation prh47bridge.

The basic fact that we should all be concerned about is that the school were found guilty.The child is at the centre of all of this so lets all keep that in mind and we can all move on and make it better for children with sen needs.

This should explain it in a clear to the point way.
20.08.19
Ashdown House School v JKL & Anor HS/1322/2019

Related Member(s):
Claire Darwin
Related Practice Area(s):
Education Law
Court:
Upper Tribunal (Administrative Appeals Chamber)
This case concerned the expulsion from the school of a ten year old boy who had ADHD, sensory processing difficulties and emotional and social difficulties arising from trauma in his early childhood and in the womb. The Upper Tribunal considered whether the First-tier Tribunal had power to order reinstatement of an expelled pupil, the means by which it could be enforced, whether it was appropriate to order such reinstatement and the appropriateness of ordering an apology.

Held: The Upper Tribunal held that the First-tier Tribunal had jurisdiction to make an order compelling Ashdown House School to reinstate a pupil that they had unlawfully excluded and that the High Court has the power under its inherent jurisdiction to enforce such an order.

Claire Darwin was involved in this case.

The basic fact that we should all be concerned about is that the school were found guilty

You have tried to make this about the fact it was an independent school. As I have pointed out, state schools everywhere discriminate against children with special needs. This kind of thing happens pretty much every day at a state school somewhere in the country, although most parents don't take it to court. I would like people to be angry about that and pressuring state schools to do better.

"So awful to think that private schools believe they are "above" the state run schools with regards basic human rights! I saw this today and it really is shocking to read..."

My original post was about private education and not about mainstream so not quite sure why you've added on mainstream to the discussion? This comment was about Ashdown house the private school in Forest row and the discrimination they showed towards "Bobby"

She’s not making it about mainstream but correctly pointing out that mainstream pull this shit, and worse, all the time.

The school weren't found guilty, this wasn't a criminal case. A judge ruled against the school.

Hi all
Just to finish and i quote" Having said that, I am pleased that the Upper Tribunal decided in favour of the parents and upheld the original order."
The right decision was made and this judgement will support many children in both state and independent schools.

Thank goodness for prh introducing some facts to this.

Xenia
If you take the time to read the court document you will find that the “fact” is that the school said that these laws were only applicable to state schools and that court could only “recommend” so in “fact” this was about the private sector.
May I suggest you read the 129 page court document fully?

Schools should be able to act to protect pupils from being attacked.

No child, whatever their disability, should be allowed to attack other pupils 37+ times.

I would expect my DS's schools to expel violent pupils.

It says he was discriminated against because of his disability, I assume meaning because his disability leads him to attack other pupils? It sounds like he needs full time one to one attention to keep him and the other children safe and they don't want to provide it.

www.matrixlaw.co.uk/wp-content/uploads/2019/08/Ashdown-House-School-v-JKL-Anor-HS1322.2019.pdf

The reason given for the exclusion by the Headmaster was aggressive behaviour, in particular two incidents where he had placed other boys in a ‘headlock’, although the exclusion decision also said it took into account ’37 incidents of unprovoked aggression’ since Bobby started at the school.

This is awful! In my mind the school were right to expel him.

Thanks Prh - interesting context.

Might be good for the pupil however, being violent that amount times regardless of disability is appalling.

If I was paying to educate my child and he was being physically attacked by another pupil, and that pupil was it being expelled, then I’d be moving my child. No doubt that this is what will happen now as I doubt the parents of the other kids in his class will want to carry on with disrupted violent lessons.

If you take the time to read the court document you will find that the “fact” is that the school said that these laws were only applicable to state schools and that court could only “recommend” so in “fact” this was about the private sector

I have read the full judgement (I did so before making any posts on this thread) and it does not say what you claim.

The school did not say these laws were only applicable to state schools. They were clear throughout that they are subject to the Equality Act. They argued that they had not breached it, not that they were not subject to it.

On appeal they argued that the court's powers are more limited when dealing with private schools. They are right, although the Upper Tribunal decided they were wrong about the impact on this particular case. They thought (with good reason) that the order made by SENDIST was not enforceable on a private school and therefore should not have been made. They did not argue that there were no orders the court could have made, just that this particular order should not have been made.

This is clear from the specific issues the Upper Tribunal was asked to resolve:

• whether SENDIST had the power to order reinstatement of a pupil in a private school
• how, if at all, such an order could be enforced
• whether such an order is appropriate given the courts a reluctant to order specific performance of a contract
• whether it was appropriate to order an apology in SEND cases

Of these, the fourth point applies to all types of school. The first three points are about the limits of the Tribunal's powers when dealing with private schools.

Saying (as the school did) that the law applies to you but the Tribunal doesn't have the power to make this particular order is very different from saying that the law does not apply to you at all.

I have never said that the fact this is a private school was irrelevant. I have repeatedly said that this was about the way the law applies differently to private schools (more specifically, it was about the more limited powers the courts have dealing with private schools). I have, however, pointed out that you are wrong to say that the school claimed to be "above" state schools or that the law did not apply to them. It has never said those things.

I also cannot see how it is in the child's best interests nor his class mates' interests to force the school to take him back rather than just order monetary damages if the law were breached.

Unfortunately monetary damages were definitely not an option in this case. Schedule 17 of the Equality Act 2010 is about enforcement in cases dealing with disabled pupils. Paragraph 5(3)(b) of the schedule states that the Tribunal does not have the power to order the payment of compensation. I don't know the reasons for this exclusion. Perhaps, given that discrimination against SEN children is rife in state schools, politicians were concerned about the effect on the public purse.

By the way, one of the clear ways in which the law for independent schools is different to that for state schools is around SEN children. If a child has an EHCP naming a state school (including an academy) the school must admit the child. However, if it names an independent school the LA must fund a place at that school but the school is not under any duty to admit.

The decision of the Tribunal, upheld by the Upper Tribunal and based on evidence from the school, tells a rather different story.

• Bobby was not given any anger management sessions
• the school failed to provide the support mandated by Bobby's EHCP
• the school failed to see advice from the LA or CAMHS
• the behaviour policy was applied more harshly to Bobby than to other pupils guilty of violent behaviour
• when another pupil stabbed Bobby with a pencil, Bobby was blamed (a clear case of victim blaming) and the other pupil was not excluded and may not have received any sanction at all
• there had been no communication with the parents suggesting that Bobby was at risk of permanent exclusion. The school seem to think they should have inferred that from the fact he was sent home early nearly a year previously

This does not look to me like the school bending over backwards to accommodate Bobby.

You were the one who introduced state schools into the thread, @Masterblaster2. Right there in your OP:

So awful to think that private schools believe they are "above" the state run schools