Anyone taken a case of disability discrim to First Tier Tribunal?

[Dowellif]

Just that really - any experiences?

Autistic DC has been in isolation for 2 days now - they have significant sensory issues which are documented. The original incident (serious) involved autistic behaviour which DC has been receiving specialist support for. SLT member did not seem aware that they were disabled or that School had received expert advice not to use isolation because it would be potentially harmful.

I don’t know whether it would be considered the same for internal exclusions, but for external exclusions often schools can successfully argue they had a legitimate reason for the exclusion due to health and safety even when the behaviour was because of a pupil’s disability.

Does DC have an EHCP? Is the need not to use isolation in there? Have you spoken to the SENCO and HT?

Thanks @FloatingBean. Think the issues are failing to make reasonable adjustments (EP advice on file that isolation must NOT be used as potentially harmful to DC), and, because the behaviour is part of a documented pattern, with a professional assessment that DC lacks capacity currently to control this more adaptively, whether a significantly punitive response is appropriate or constitutes discrimination arising from a disability. In both cases the legal test would be whether the school's actions were a proportionate means of securing a legitimate aim?

They may well struggle with proportionality as they have ignored expert advice on how to respond, indeed they appear not to have considered DCs disabilities at all in their assessment of how to understand and respond to the incident.

DC (trauma history) experienced significant stress due to the sensory conditions they were confined in for 2 days in a row. For comparison purposes, in the Youth Justice system, even non-disabled children are not allowed to spend more than three hours in isolation.

The landmark case recognising aggressive behaviour is not a choice for autistic children came in 2018:

Judge Rowley: “In my judgment the Secretary of State has failed to justify maintaining in force a provision which excludes from the ambit of the protection of the Equality Act children whose behaviour in school is a manifestation of the very condition which calls for special educational provision to be made for them. In that context, to my mind it is repugnant to define as 'criminal or anti-social' the effect of the behaviour of children whose condition (through no fault of their own) manifests itself in particular ways so as to justify treating them differently from children whose condition has other manifestations.”

If internal exclusion is considered the same as external exclusion (and I don’t know whether it would be in your case) regardless of behaviour arising from a pupil’s disability there are times where the school can successfully argue they had a legitimate reason due to health and safety and therefore it isn’t disability discrimination.

I think you need specialist legal advice far beyond what can be given on MN and are clear to them what you mean by isolation. Because I took your first post to mean internal exclusion as lots of schools call that isolation which isn't the same as isolation in the YJS. But from your second post perhaps you mean isolation as in placed in a room completely on their own.

Thanks @FloatingBean - yes waiting to speak to someone, so more interested in whether anyone here has taken a case and what the experience was like.

Internal exclusion are a grey area in law - and are not recorded or monitored in the same way by Ofsted.

Bump
I think it’s free of charge .
u don’t need to pay the RB legal cost even if u lose .
So why not give it a go

I made an application to the Tribunal- similar sort of background by the sounds of things. The Tribunal considers, first, if there are legitimate grounds to bring it - in my case, it determined there were. It then issued directions all the way to a final hearing.

What u mean by the last sentence .
we r in similar boat . We been allocated a judge and date for court .

do u mean the same thing

Also I wonder if appeal : upper tribunal .

but I heard RB can take it via high court than upper tribunal . If that’s the case . Do claimants have to pay for high court case if lost ?
or no cost for claimants rule apply to all SEN cases no matter which court it ends up to : high court or upper tribunal .

School usually have legal cost insurance .
for case like this :
I am guessing 100k for solicitor and barrister. Then another 100k for appeal ( if that’s the case accepted ) . Legal cost insurance will cover 200k 100%? For school ?
private school I mean . In my case it’s a charity . I don’t know whether charity status of a private school will make their own life harder or easier if been served by first tier tribunal .