County court claim alongside SEND tribunal for school disability discrimination?

[Dayofpeace]

Hi, I was hoping someone could give me a bit of legal advice or advice from experience. I will try to summarise.
I am taking an independent school to SEND tribunal for disability discrimination in the admissions process (equality act section 85).
this is because they told me by telephone call that my child would not be allowed to sit the entrance exams because they had an ehcp. My child has autism, some social and dmotional disregulation at times, but academically very bright. Child is currently in mainstream state junior and doing fine, but really needs smaller class sizes and single sex environment, hence the application to the independent for secondary, as no other schools were suitable.

A week after the school refused her, I realised their refusal reason was unlawful. I challenged them, and they changed the reason for refusing her. I said i would take it further and made a formal complaint to the head. The head then said i was not allowed to use the complaints process as it was only for “current families”. That’s not what their Admissions policy says though!

so i raised a subject access request. Then they tried to descope the subject access request, and when i got the sar data through, heaps of emails were totally redacted as “brochures” 🙄. On top of that, there was an email that showed that as soon as i complained, they asked the IT department to retrieve a call recording of when they told me my daughter would not be allowed to sit entrance exams, but then never disclosed the call recording in the sar. I had no idea the calls were even recorded! I asked for the recording again and again and they stonewalled me for nearly 2 weeks. I eventually applied for an urgent tribunal order to preserve the data and told the school i’d applied to the tribunal, and the school finally released it.

anyway, i have a claim in with the SEND tribunal for disability discrimination claims under different heads of claim (s13, s15, s19 and s20-21).

i also filed a s27 victimisation claim for the school a) changing their reasons for the refusal (more than once), b) for them apparently deciding internally that they would not apply the complaints process and telling me it was only for “current families”, and c) for trying to mess with the sar and trying to hide audio evidence.

the judge has issued initial directions that threatens to strike out the s27 claim, because the judge is not convinced it lies within the jurisdiction of the SEND tribunal under s85. I have filed a response to explain why i believe it is in jurisdiction, but i don’t know if this will be successful.

my question is about county court. There is a risk the tribunal will strike out my s27 claim. If they do, the s27 stuff would be in jurisdiction of county court. But i am almost out of time (only a few days left) to file a county court claim, due to the strict 6 month time limit. I filed the tribunal claim within 5 weeks of the school actions, but i only got the tribunal registration and judges directions 2 weeks ago due to simply how long the tribunal process takes.

by the time i find out whether the judge will allow my s27 claim to proceed in the SEND tribunal or not, i will be out of time to file a county court claim if the answer is no.

So I am considering raising a last minute panic county court claim in the next 2 days, but am nervous as i have no legal representation and i fear a cc claim is going to be more complicated and risky (like costs risks, also the stress).

i am also wondering about things like asking for stays while the tribunal claim is live, about how easy it is to discontinue the claim if i need to further down the line, due to costs risks. I am also wondering about the technicality of already being out of time for a couple of the discriminatory acts by the school, with only the victimisation acts still being in time, and whether this would make a county court claim rather disjointed, with the initial discrimination being out of scope.

how will the court look at a claim where there was a series of linked events / continuing course of action over a relatively short period, but the discrimination bits are out of time and only the victimisation bits are still in time?

sorry for the long technical ramble. Thanks for any thoughts or pointers. X

Do you actually still want to send your kid to this school?

Ha! No, certainly not. I’m doing this so they can’t and won’t ever do this to another child.

You do know that if you lose, you could be liable for their costs which could run into thousands?

Seems an expensive way to help people you’ve never met who may or may not come across this situation in the future.

I’d concentrate on something else.

is this a private school, so even if she had passed the exams, the school would still be able to decide if they wanted to offer a place?

If you want to chuck thousands of pounds at this, crack on.

They are a business though, they can accept who they want as ‘clients’ so I doubt you spending all your savings trying to get them to be better people, it won’t make any difference going forwards-I’d save your energy.

Agree with how. Also if you do lose you might want to look up how they might recover the money from you. If you own your own home for example, they could force the sale. I’m not sure that’s in your DC’s best interests.

What do you want as an outcome from this op?
Not sure what the point is really.

Private schools do not have to accept students if they are not able to meet their needs. If a child as a echp that means they need adaptations and a private school isn’t required to make them. Remember that it’s a private business and they can choose their clients. There are many schools which are set up to meet the needs of students with additional needs

This, @Dayofpeace what does her ehcp have in it?

You clearly have too much time and money. Stop this madness and focus on sending your kid to a different school.

I respect that you are trying to do your best for your child, but:
The school has to consider the type and balance of pupils already there (ie. whether your child would fit in)
Your legal actions appear excessive, and
The school is having to divert resources away from their purpose - which must be very annoying for them.

I recommend you go to a solicitor for legal advice, not ask SM.

The school's actions were unlawful and against the Equality Act. The facts on the ground show my daughter would have passed the entrance exams, the facts are such that the school is not going to dispute this.

For those saying the school can choose who they want, they certainly can, but only providing they remain compliant with the Equality Act, and there is very strong evidence, and multiple pieces of it, that they have not done so.

Not only have they hurt my daughter by rejecting her, there is obviously an institutional bias against disability. This is unlawful. Her EHCP is such that the school was the only school that met all her needs locally. How many other children have they done this to, and how many might they do it to going forward if no-one takes action?

For those mentioning money, I am not using lawyers, I am doing the work myself. I'm pretty good at research, and understanding the law, and I've assembled a pretty good, and well evidenced case for Tribunal. I expect to win on multiple grounds.

I don't feel that institutional discrimination should be ignored, and I don't feel that I should let it slide so the school can do it again to others. If I have the time and capability to achieve that, then good.

I'm here to look for legal points of view that I may not have considered. I'd love to hear experiences of people who may gave experienced similar situations, or elements of it.

PoppinjayPolly - Her EHCp needs defined are reasonably basic, but cannot be met in the state sector - I can't say too much as I'm bound by Tribunal rules not to disclose anything that could be identifying, but suffice it to say the school had all the resources they needed, and plenty more, to take her. There is internal communication that shows they simply didn't want to take her for unlawful reasons. Again, much as I'd love to disclose more, I am bound by Tribunal rules at the moment.

Private schools can let in who they want. They don’t have to abide by an EHCP unless they’re named in it. It’s not discrimination. The diversion of resources mentioned by PP is a key point.

This ability to control their own process is exactly why many parents choose it.

Why not spend your time and effort finding the right school for your DD.

If the needs are reasonably basic, why can no mainstream school meet them?

Again, I can't explain why state cannot meet needs due to Tribunal rules, but the Local Authority are in agreement. She is now going to a different school, but now one of her needs will not be met. There is nothing we can do about that now.

As before, independent schools can certainly let in who they want - that is not in dispute - PROVIDING they act within the law. The point here is that they did not act within the law.

Is the need not being met that you want her in a single sex school?

They can let in who they want provided they comply with the Equality Act. Refusing to admit a child simply because they have SEND is clearly unlawful discrimination. I'm amazed how many people on this thread either can't see that or want to defend it.

Re the County Court claim, OP's choices are to start a victimisation claim in the County Court or wait and hope the County Court will allow her to apply out of time if the Tribunal decides it does not have jurisdiction.

Isn’t the problem with private schools that terms and conditions are completely contractual? And most have a contract term that simply states that admission is entirely at the discretion of the head teacher?
If people who have had children asked.to leave due to SEND in the past got nowhere, how is someone going to be successful who has not even been admitted yet?

I am not taking a moral stance. Just stating simply if it is a contractual term, it is a contractual term.

You could see if the school would agree to extend limitation whilst the tribunal case is ongoing. If not you could issue the claim and ask to serve the claim form yourself. You have 4 months to prepare particulars of claim and serve those together with the claim form. If the tribunal decide they do have jurisdiction in the meantime, you can discontinue the claim. The other side won’t have incurred any costs at that stage.

“Her EHCP is such that the school was the only school that met all her needs locally” And that argument does not apply to private schools, it’s a point that can be used, but may not succeed , in admission to over subscribed state funded schools and to private approved Section 41 establishments . Ordinary private schools do not have catchment areas so locality does not count - if it did, LAs could easily win refusals of funding for appropriate schooling out of their area .
Unless you have missed out a vital fact about the school ie that it’s a specialist Section 41 provider, the EHCP can’t be used to pressure an admission. An EHCP can be used to provide funding for private school education but only if a suitable school ( and not just suitable in your opinion) have already formally offered a place.

If you are determined on pursuing this school, it’s time to contact a specialist lawyer - who will tell you that you have got this upside down.

And I’m sorry if your daughter feels hurt by this lawful rejection but failing to get the school of your choice is common and it’s up to you to manage. Maybe less warrior queen with the bit between her teeth (king/his also applies ) and more considered examination of viable alternatives.

As someone who has done many, many tribunals.

It won't be heard until over a year unless you expedite it.

Indi schools do not have to follow the same rules as state.

Disability discrimination cases are very hard to win - ask the charities ipsea and sossen.

Ehcps are going to be scraped. Don't kill yourself defending something that's going to be dissolved.

Once the white paper comes in, everything is going to change.

I admire you. If more people did this the world would be a better place.

But as your child won’t directly benefit, if you’re out of time with the county court, so be it. They’ll already think twice before pulling this shit again

OP, I sympathise with you and I completely understand why you want to take this further and have an official record that the school has acted unlawfully.

In my case my child did take the exams/ interviews but failed them all - I did DSARs for a couple of the schools (one was kind enough to talk me through how they couldn't accommodate him), their notes are pretty carefully worded but the end result is the same - he wasn't offered a place because of his ASD diagnosis. He got 100% in one maths assessment but still no place. They just don't want the hassle/ any extra work and while they are over subscribed they can pick and choose who to take.

Even if you win they do not have to take your child. All you can get is an apology and maybe some money if it has cost you something. If you lose you can end up paying their costs. To me, it just wasn't worth it. I know they are in the wrong.

I mean this kindly, and I need to take a leaf out of my own book, you need to move on.

My friends son was expelled from a NMI SEN school her disability destination case and complaints was shut down. School lost his entire file. It's so much easier for indis to close ranks.

I asked a few mainstream independents if they would look at my dd ehcp to see if they would take her. They all said they couldn't meet needs, just as the local SEN schools are allowed to do.

If a NMI SEN school said they couldn't meet need, I'd have no rights of appeal as the HT word is final in the eyes of SENDIST.

You just need to be very clear on law and if this is worth it, as I say EHCPs will stop. This white paper is going through.