K v The School & Anor [2007] EWCA Civ 165

[2007] EWCA Civ 165Case No C1/2006/0616
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, ADMINISTRATIVE COURT
MR JUSTICE MITTING
C0443005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 th March 2007
Before
LORD JUSTICE AULDLORD JUSTICE WALLLADY JUSTICE HALLETT
Between
Ms ‘K’AppellantTHE SCHOOL1 st RespondentTHE SPECIAL NEEDS & DISABILITY TRIBUNAL2 nd Respondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
David Wolfe (instructed by Messrs Levenes - Solicitors) for AppellantJohn Friel (instructed by Messrs Illiffes Booth Bennett - Solicitors) for 1 st Respondent for The 2 nd Respondent did not attend and was not representedHearing Hearing date: 29 th January 2007
Judgment

Introduction

[1]This is an appeal to which reporting restrictions apply. Nothing, therefore, must be published which in any way identifies the child concerned, the parties or the other participants in the proceedings. It concerns a child, whom I will call A, and who was born on 2 September 1990. A has the misfortune to be severely disabled following a road traffic accident in September 1999. He is a paraplegic and incontinent of faeces. Due to his disability, he is unable to change or clean himself after passing a motion. Fortunately, his intellect is unimpaired, although a further consequence of his disability is that he has a statement of special educational needs (SSEN).[2]Pursuant to permission granted on paper by Richards LJ on 2 August 2006, Ms K, A’s mother, appeals against an order made by Mitting J in the Administrative Court of the Queen’s Bench Division on 9 March 2006 ([2006] EWHC 622 (Admin)) dismissing her appeal against a reserved decision of the Special Educational Needs and Disability Tribunal (SENDIST) made on 2 June 2005 following a hearing on 12 April 2005. SENDIST had rejected a claim made by Ms K against the governing body of the school attended by A (the School) that it had unlawfully discriminated against A contrary to sections 28A to 28C of the Disability Discrimination Act 1995 (DDA 1995) as inserted by sections 11 to 13 of the Special Educational Needs and Disability Act 2001 (the 2001 Act).[3]In her notice of appeal to SENDIST, the claim made by Ms K was expressed in the following terms: - In the Autumn term of 2003, on one occasion, the School refused to allow (A) to be changed, following an accident. As a result, Ms K made a complaint but subsequently suspended that complaint around March 2004 because matters had appeared to have been resolved and in order to maintain good relations with the School. However, in June 2004, on two occasions, and on the first day of term in September 2004, the School has again refused to permit A to be changed, following an accident. As a result, on each occasion, he had to go home and missed the rest of the school day, in order to be cleaned and changed. In the circumstances, it is alleged that this constitutes discrimination by the School against A, in breach of the provisions of section 28A(2), section 28B(2) and section 28C(1)(b) of DDA 1995. There are other complaints, but these do not form the subject matter of this appeal, and I say no more about them.[4]The remedies sought by Ms A before SENDIST were: - 1. An apology 2. A requirement that A’s needs are met in school; particularly with regards to his toileting, medical and hygiene needs. 3. Disability Equality Training. 4. A requirement that A will not be victimised.[5]As of 29 January 2007, when the appeal was heard, A remained a pupil at the School, and will take his GCSEs this summer. He is currently the subject of a fresh SSEN, a copy of which we asked to see, and which is dated 26 October 2005 (that is more than four months after SENDIST’s decision and more than four months before the date of the judge’s decision). The current SSEN makes increased provision for A, and it appeared to be common ground between counsel before this court that, at the present time;(i) A’s incontinence is now less severe than it had been; and(ii) that the problem of cleaning and changing him after an involuntary motion has been addressed following the additional provision contained in the fresh SSEN.

What is the purpose of this appeal?

[6]The relief sought by Ms K in this court was an order setting aside SENDIST’s decision and a remission of the application to a fresh Tribunal for reconsideration. When we asked Mr. David Wolfe, for Ms K, why the appeal was being pursued, his answer was;(1) that Ms K wanted the apology from the School which she had not received; and(2) that in any event, as Richards LJ had remarked when granting permission to appeal on paper: “the nature of the duties imposed on a school in relation to a child in the position of A and the relationship in this respect between the disability discrimination regime and the special educational needs regime are matters of sufficient importance to warrant consideration by this court”.[7]As Mr. Wolfe acknowledged, this is a second appeal, to which section 55(1) of the Access to Justice Act 1989 applies, and it is, of course, the case that permission to appeal has been granted. Furthermore, in principle and as a general proposition, I do not disagree with Richards LJ’s reasons for granting permission. In a proper case, I am in little doubt that a second appeal raising such issues might well be appropriate. However, in the instant case I have serious doubts about whether Richards LJ would have granted permission had he been aware of the developments identified in paragraph 5 of this judgment. I take the view what has happened on the ground since SENDIST’s decision is highly significant, and, despite Mr. Wolfe’s enthusiastic advocacy, in my judgment, those developments render this appeal to all intents and purposes academic.[8]Even if I am wrong about that, however, and even if I come to the conclusion that SENDIST was wrong, as a matter of law, not to find that the school had discriminated against A, I can frankly see no real purpose in a remission to a fresh Tribunal for reconsideration. The only relief which has not been addressed is the apology which Ms K seeks on A’s behalf. I can quite understand that a finding of discrimination should, in most circumstances make an apology by the person or body guilty of discrimination appropriate. However, on the facts of this case, as I shall shortly recount them, I am not satisfied that an apology by the school is called for. More importantly, however, A’s needs have been addressed: disability equality training (whatever the precise meaning of that term) does not seem to me to be required, and a requirement that A will not be victimised adds nothing in my judgment to the statutory duty not to discriminate.[9]The fact remains, however, that permission to appeal has been given, and this court is, accordingly, duty bound to examine the appeal in order to decide whether or not SENDIST made an error of law which the judge has failed to identify and correct. I will, therefore, return to the question of remedy if and when it arises.[10]Against that background, I propose to begin by setting out the statutory and regulatory framework.

The statutory and regulatory framework: (1) Disability

[11]I begin with the relevant provisions of DDA 1995, most of which were inserted into it by section 11(1) of the 2001 Act. Disability is defined in section 1(1) of DDA 1995. A person has a disability if he has “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. A self-evidently fits within this definition.[12]Part IV of DDA 1995 deals with education, and Chapter 1 of Part IV is entitled Schools. Section 28A to C, where material, reads as follows: - 28A Discrimination against disabled pupils and prospective pupils (1)……. (2) It is unlawful for the body responsible for a school to discriminate against a disabled pupil in the education or associated services provided for, or offered to, pupils at the school by that body. (3) The Secretary of State may by regulations prescribe services which are, or services which are not, to be regarded for the purposes of subsection (2) as being—(a) education; or(b) an associated service. (We were told that no such regulations have been made.) 28B Meaning of “discrimination” (1) For the purposes of section 28A, a responsible body discriminates against a disabled person if— (a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and (b) it cannot show that the treatment in question is justified. (2) For the purposes of section 28A, a responsible body also discriminates against a disabled person if— (a) it fails, to his detriment, to comply with section 28C; and (b) it cannot show that its failure to comply is justified. (7) ……. less favourable treatment, or a failure to comply with section 28C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial. (8) If, in a case falling within subsection (1)— (a) the responsible body is under a duty imposed by section 28C in relation to the disabled person, but (b) it fails without justification to comply with that duty, its treatment of that person cannot be justified under subsection (7) unless that treatment would have been justified even if it had complied with that duty. 28C Disabled pupils not to be substantially disadvantaged (1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that— (b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled. (2) That does not require the responsible body to— (a) remove or alter a physical feature (for example, one arising from the design or construction of the school premises or the location of resources); or (b) provide auxiliary aids or services. (3) Regulations may make provision, for the purposes of this section— (a) as to circumstances in which it is reasonable for a responsible body to have to take steps of a prescribed description; (b) as to steps which it is always reasonable for a responsible body to have to take;(c) as to circumstances in which it is not reasonable for a responsible body to have to take steps of a prescribed description;(d) as to steps which it is never reasonable for a responsible body to have to take. (4) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a responsible body must have regard to any relevant provisions of a code of practice ….. (Once again, we were informed that no regulations had been made under DDA 1995, section 28C(3). The code of practice material to this case is the Code of Practice for Schools (2002). (a) education; or (b) an associated service. (1) For the purposes of section 28A, a responsible body discriminates against a disabled person if— (a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and (b) it cannot show that the treatment in question is justified. (2) For the purposes of section 28A, a responsible body also discriminates against a disabled person if— (a) it fails, to his detriment, to comply with section 28C; and (b) it cannot show that its failure to comply is justified. (7) ……. less favourable treatment, or a failure to comply with section 28C, is justified only if the reason for it is both material to the circumstances of the particular case and substantial. (8) If, in a case falling within subsection (1)— (a) the responsible body is under a duty imposed by section 28C in relation to the disabled person, but (b) it fails without justification to comply with that duty, its treatment of that person cannot be justified under subsection (7) unless that treatment would have been justified even if it had complied with that duty. 28C Disabled pupils not to be substantially disadvantaged (1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that— (b) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled. (2) That does not require the responsible body to— (a) remove or alter a physical feature (for example, one arising from the design or construction of the school premises or the location of resources); or (b) provide auxiliary aids or services. (3) Regulations may make provision, for the purposes of this section— (a) as to circumstances in which it is reasonable for a responsible body to have to take steps of a prescribed description; (b) as to steps which it is always reasonable for a responsible body to have to take; (c) as to circumstances in which it is not reasonable for a responsible body to have to take steps of a prescribed description; (d) as to steps which it is never reasonable for a responsible body to have to take. (4) In considering whether it is reasonable for it to have to take a particular step in order to comply with its duty under subsection (1), a responsible body must have regard to any relevant provisions of a code of practice …..

The statutory and regulatory framework: (2) Special Educational Needs (SEN)

[13]Part IV of the Education Act 1996 (EA 1996) deals with SEN. All the references in this part of the judgment are to EA 1996, and I will, accordingly simply refer to the relevant sections. Section 312 is headed Meaning of “special educational needs” (SEN) and “special educational provision” (SEP). Section 312(1) states that a child has SEN for the purposes of EA 1996 if he has a learning difficulty which calls for SEP to be made for him. Section 312(2) provides that, as applied to A, a child has a learning difficulty if “he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority”. A plainly fits within these definitions.[14]Section 312(4) defines SEP in relation to a child who has attained the age of two as “educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools)”.[15]Section 313 directs the Secretary of State to issue a code of practice, which (s)he is entitled to revise from time to time. The purpose of the code of practice is to give “practical guidance” in respect of the discharge by local educational authorities (LEAs) and the governing bodies of maintained schools of their functions under EA 1996, Part IV. The relevant Code of Practice for this case is that issued by the Department for Education and Skills (DfES) in November 2001.[16]Section 316 requires A, as a child in relation to whom a SSEN is maintained, to be educated in a mainstream school unless that is incompatible with either the wishes of his parent, or the provision of efficient education for other children. The School attended by A is a mainstream school.[17]Section 317 is headed Duties of governing body or LEA in relation to pupils with SEN. Section 317(1), provides that the governing body of A’s school shall: --(a) use their best endeavours, in exercising their functions in relation to the school, to secure that, if any registered pupil has special educational needs, the special educational provision which his learning difficulty calls for is made,(b) secure that, where the responsible person has been informed by the local education authority that a registered pupil has special educational needs, those needs are made known to all who are likely to teach him, and(c) secure that the teachers in the school are aware of the importance of identifying, and providing for, those registered pupils who have special educational needs. Section 317(2) identifies “the responsible person” in section 317(1)(b) as the head teacher or the chairman of the governing body of the school.[18]Section 323 is headed Assessment of Educational Needs and requires the LEA to make an assessment of the educational needs of a child in A’s position. Section 324 deals with the SSEN itself, which must (section 324(2)) be in “such form and contain such information as may be prescribed”. In particular the SSEN must: -(a) give details of the authority's assessment of the child's special educational needs, and(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4). Section 324(4) requires the SSEN (inter alia) to specify the type of school which the LEA considers would be appropriate for the child.[19]Under section 324(5), where a LEA maintain a SSEN then: - (a) unless the child's parent has made suitable arrangements, the authority— (i) shall arrange that the special educational provision specified in the (SSEN) is made for the child, and (ii) may arrange that any non-educational provision specified in the (SSEN) is made for him in such manner as they consider appropriate. (i) shall arrange that the special educational provision specified in the (SSEN) is made for the child, and (ii) may arrange that any non-educational provision specified in the (SSEN) is made for him in such manner as they consider appropriate.[20]Section 324(7) applies schedule 7 to the Act to the making and maintenance of S(s) SEN. Section 328 is headed Reviews of educational needs and delegates to regulations the frequency with which assessments under section 323 are to be repeated. Section 328(2) gives a parent the right to insist on a review of a child’s SSEN if no such review has been made within six months of a parental request for it. The sub-section only applies, however, if it is “necessary” for the LEA to make a further assessment under section 323 – see section 328(2)(c). The parent is given a right of appeal to a SENDIST against a LEA’s determination not to comply with a parental request for a review of the child’s SSEN, and the SENDIST is given the power to order the LEA to arrange for an assessment to be made under section 323. Section 328(5) provides that a SSEN shall be reviewed by the LEA -(a) on the making of an assessment in respect of the child concerned under section 323, and(b) in any event, within the period of 12 months beginning with the making of the statement or, as the case may be, with the previous review. Section 328(6) provides that: Regulations may make provision— (a) as to the manner in which reviews of such statements are to be conducted, (b) as to the participation in such reviews of such persons as may be prescribed, and(c) in connection with such other matters relating to such reviews as the Secretary of State considers appropriate. Section 328(6) provides that: (a) as to the manner in which reviews of such statements are to be conducted, (b) as to the participation in such reviews of such persons as may be prescribed, and (c) in connection with such other matters relating to such reviews as the Secretary of State considers appropriate.

The Education (SEN) (England) (Consolidation) Regulations 2001 (the Regulations)

[21]These are the Regulations identified in section 328(6). They prescribe the form and content of the SSEN, a pro forma for which is set out at Schedule 2. The SSEN is divided into 6 parts:(1) introduction;(2) SEN;(3) SEP;(4) placement;(5) non-educational needs; and(6) non-educational provision. Seven appendices provide headings entitled A; Parental Advice; B: Educational Advice: C: Medical Advice; D: Psychological Advice; E: Advice from the Social Services Authority; F: Other Advice Obtained by the Authority; and G: Advice obtained by the Authority since the last assessment of the child under section 323 was made.[22]I propose to consider the applicability of A’s SEN to the provision provided for him later in this judgment, after I have set out the facts, and have considered both SENDIST’s reasons and the judge’s judgment.

The facts

[23]I take these from the judge’s clear judgment, with only minor, editorial alterations designed largely to preserve anonymity:- 1. A …is a paraplegic and incontinent of faeces but his intellect is unimpaired. He spent two years in Stoke Mandeville Hospital and one year at a local education authority maintained special primary school. The LEA issued a SSEN under EA 1996 section 324. 2. Part 2 of the SSEN listed his SEN as including:
"6. [A] is dependent on the support of adults to assist in the management of his self-care, physical and medical needs"
. The SEP listed in Part 3 included:
"6 ... In the short term, he is likely to require adult assistance for managing his toileting and hygiene needs..."
Resources sufficient to deliver up to 34 hours of special support assistance per week were provided. Part 4 stated the LEA's view that his needs would best be met in a "mainstream school with a specialist resource base designed specifically to meet the needs of children with Physical Disability”. (A particular school was identified.) 3. Ms K, A's mother, disagreed. She wanted him to go to the School, at which she believed his undiminished intellect would be challenged. She therefore appealed to SENDIST to amend the statement. On 11 February 2002, SENDIST issued a decision which recorded the agreement of his mother and the LEA that he should be placed at the School, and noted, in the amended Part 4 of the statement:
"…the School is confident that it can meet his intellectual and physical needs without further adaptations to the school buildings." 4. This statement was erroneous for a combination of reasons (as found by SENDIST which sat on 12 April 2005, and whose decision gives rise to this appeal): the understatement by Ms K of the frequency of, and difficulty of coping with, episodes of incontinence; glossing over the difficulties by the local education authority; and naivety on the part of the school. The SSEN was not amended so as to require the resourcing of additional hours of special support assistance, even though the school did not have the specialist resource base designed to meet the needs of children with physical disability identified within the local education authority’s proposed placement. 5. The apportionment of responsibility for this state of affairs occupied much of the hearing before SENDIST. It was largely a distraction from the central issues. 6. A joined the School in September 2002. When he had an involuntary bowel movement a learning support assistant, initially (Mr. C), cleaned him up and changed him. Mrs B took over that role in September 2003; but Mrs E, by then a Special Educational Needs Coordinator, took it upon herself to clean and change him for much of the time. To do so, she had to lift the bottom half of his body. Mrs L, the School Principal, became concerned about the frequency of bowel accidents and the facilities to deal with them. 7. On 8 October 2003, following such an accident, she sent A home and wrote to Ms K as follows: "[A] has had yet another bowel accident this morning and we have neither the facilities nor the staff to deal with it appropriately. When we first accepted [A] it was on the understanding that these accidents were very infrequent. Our experience of last year showed us that these accidents were more frequent than anticipated. There are, also, issues of Health and Safety for our staff and pupils. [A] is now a maturing young man for whom this will become increasingly problematic."
She arranged for a risk assessment to be undertaken by a Health and Safety consultant, TB, who reported to the school, on 22 October 2003, in these terms: 1. There are various occasions when [A] needs lifting by staff. He is already a well-built boy and such lifting presents a high risk of injury to those staff. In order to reduce this risk any staff must have training in manual handling and lifting. Essential to the reduction of risk relating to lifting is the provision of hoists in each of the areas where it is likely to occur. This would include disabled toilet, medical room and each of the classrooms when a standing frame is required 2. There are high health and safety risks both to [A] himself, other pupils and involved staff caused by his frequent bowel accidents. In order to reduce these risks he should wear appropriate pads or pants. This however would not solve the problems for cleaning and changing and, in order to reduce the associated risks, [A] needs access to suitable cleaning and changing facilities, including a sluice and private properly equipped room..." Later in the report, TB stated his view:
"... in order to satisfy Health and Safety legislation and to make appropriate provision for [A], it would be essential to provide a considerable number of auxiliary aids and services and to make physical alteration to the building."
His recommendation concluded with the following words:
"... it is my view that the present placement cannot be sustained on Health and Safety grounds. It is only the total dedication of a member of staff beyond the requirements of her job that have made it possible for the placement to continue thus far." (my emphasis) 8. Mrs L therefore instructed staff not to lift A, but Mrs E continued to clean and change him whenever he had a bowel accident. She told SENDIST that she allowed her heart to rule her head. On 30 April 2004, she sustained a serious and disabling injury to her back when lifting him. She ruptured a disc in the upper spine and damaged the nerves. After Mrs E’s injury Mrs L repeated her instruction to Mrs B and other members of staff not to risk injury by lifting A. Mrs L also promptly sought the assistance of the local education authority. 9. On 10 May she asked for two people to lift and change A and repeated her request on 12 May. She sought an amendment to the SSEN. The LEA decided not to reassess and allocated no additional funding. As a result when A had a bowel accident on 15, 22 June and on 2 September, no member of staff cleaned him up and changed him and he was sent home in the care of an uncle”. "6. [A] is dependent on the support of adults to assist in the management of his self-care, physical and medical needs"
. The SEP listed in Part 3 included: "6 ... In the short term, he is likely to require adult assistance for managing his toileting and hygiene needs..." "…the School is confident that it can meet his intellectual and physical needs without further adaptations to the school buildings." "[A] has had yet another bowel accident this morning and we have neither the facilities nor the staff to deal with it appropriately. When we first accepted [A] it was on the understanding that these accidents were very infrequent. Our experience of last year showed us that these accidents were more frequent than anticipated. There are, also, issues of Health and Safety for our staff and pupils. [A] is now a maturing young man for whom this will become increasingly problematic." "... in order to satisfy Health and Safety legislation and to make appropriate provision for [A], it would be essential to provide a considerable number of auxiliary aids and services and to make physical alteration to the building." "... it is my view that the present placement cannot be sustained on Health and Safety grounds. It is only the total dedication of a member of staff beyond the requirements of her job that have made it possible for the placement to continue thus far." (my emphasis)

The discrimination claim

[24]I have already set out the terms of the claim. Subsequently, as the judge records, Ms K claimed that a further act of discrimination had occurred on 7 January 2005 when A was not taken on a Year 9 trip to an athletics centre. Although she appealed against the findings of SENDIST on both issues, the latter is no longer pursued, and I say no more about it.

The findings of SENDIST

[25]The hearing before SENDIST took place on 12 April 2005, and its reserved decision is dated 2 June 2005. It dismissed the claim. At the outset of the hearing, SENDIST invited the parties to set out their respective cases. For present purposes I record only the two relevant complaints made by Ms K’s solicitor. They were: -(1) that the School had refused to allow A to be cleaned and changed after he had had an accident with his bowels on four occasions (2 October 2003, 15 and 22 June 2004 and 2 September 2004;(2) that since September 2004 the area or space which was allocated for A to do his stretching exercises and to be cleaned and changed was inappropriate and lacked privacy.[26]The School’s response was, firstly, to submit that the first two incidents in (1) above could not be pursued as they were out of time. SENDIST rejected that submission, and it was not pursued either before the judge or before us. I therefore say no more about it.[27]The School’s substantive response was as follows: -(1) when A’s needs were discussed with the school before he was admitted, the possibility of bowel accidents was not fully discussed;(2) A’s SSEN was out of date. For example, there was no provision for occupational therapy support;(3) there was nothing in the SSEN which required A to be cleaned and changed after a bowel accident;(4) Mrs. E cleaned and changed A voluntarily but suffered severe injury to her back; thereafter, this assistance was stopped;(5) the school had arranged for a risk assessment to be carried out; the advice was that the school staff should not clean and change A because it required them to lift him. This involved a high risk of injury to staff.(6) Everyone was aware, before A joined the school, that it was not adapted to meet his needs. Some adjustments had been made and building work was being carried out to improve its facilities. For the moment the school was offering the best facility it could. Ms K and her advisors had had the problems drawn to their attention at meetings. There was the added problem that A would not make use of advice offered to him.[28]It would seem from the observations made by SENDIST that A’s SSEN dated 22 January 2002 was inaccurate in several material respects. The most startling is that the SSEN, after recording Ms K’s preference for A to attend the school, goes on to assert, as apparent fact, that :- ….. the School is confident that it can meet (A’s) intellectual and physical needs without further adaptations to the school buildings. (The School) has a successful track record of helping very able children with physical disability and for this reason the LEA will support Ms K’s and A’s preference for a selective but non specialist provision. Accordingly (the School) is the named school.[29]SENDIST records Mrs. L’s evidence at the hearing that the School was not consulted by the LEA before the agreement with Ms K was made, and appears to find that had the School been consulted, Mrs. L would have expressed considerable doubt that it could meet A’s needs.[30]There were several substantial conflicts in the evidence before SENDIST. The first was over the extent to which the School had been made aware of what SENDIST described as A’s “toileting needs” prior to his admission in September 2002. On this, SENDIST preferred the evidence of the School. In addition to relying on contemporaneous documentation presented by the School, SENDIST stated in paragraph D of its conclusions: - There was no evidence that the School approached the LEA before A’s admission in September 2002 voicing its concerns whether it could meet A’s physical needs. It is likely, therefore, to have been influenced by(a) the contents of the SSEN and(b) what the family told them about his toileting needs. Further, we think it unlikely that any school without specialist facilities would have willingly admitted a pupil with such incontinence issues if it had been fully aware of the severity of need. As Mrs. L told us at the hearing, A was admitted and the School felt it had no choice but to do its best.[31]There was also a dispute about whether A needed to be lifted when he was cleaned up. On this, SENDIST preferred Mrs. E’s evidence, which it found to have been honestly given. Thus SENDIST found that A did require lifting, and that inevitably, as he got bigger and heavier, this task became all the more difficult.[32]At paragraph H of its conclusions, SENDIST recorded: - There was, unfortunately, an issue between the parties about the cause of Mrs E’s injury – the family did not accept that she had injured her back when lifting A. Again, we accept that Mrs. E’s evidence was honestly given; we accept it and find it a matter of regret that the family were unable to do so.[33]On the question of whether the space designated for A’s physiotherapy and changing after September 2004 was sufficiently private, SENDIST was “inclined to accept Mrs. L’s evidence that whilst the space was not ideal, it was sufficiently private as a temporary arrangement”.[34]On the discrimination claim, SENDIST took the view that the LEA might be open to criticism in a number of respects, which it identified. It also expressed the conclusion that the School had been naive in admitting A in September 2002 without ensuring that the questions it had raised in January and July of that year were properly addressed. Mrs. E had been “unwise” to continue to lift A despite Mrs. L’s instruction not to do so. She had paid a heavy price, and, as she herself acknowledged, she had allowed her heart to rule her head.[35]SENDIST’s conclusions on the discrimination issue as pursued in this court are set out in paragraphs N to Q of its reasons, and I propose to set out those paragraphs in full. N But the question we are asked to resolve is whether the School has unlawfully discriminated against A in the respects alleged by Ms K. The reality is that the substance of the claim arises from A’s serious medical condition, the full extent of which is not described in Part 2 of the SSEN, nor are the appropriate facilities or provisions set out in Part 3. Furthermore, the SSEN contains no specific or detailed arrangements in terms of staffing and resources to carry out the required tasks. The expectation that the needs can be fully met in a mainstream school that is not adequately resourced with no specifically trained staff to deal with incontinence is unrealistic. O What was the school's responsibility in respect of the toileting issues? In our view the school undertook responsibility for meeting A's needs as set out in Part 2 of his Statement. It was not their responsibility to clean and change A after a bowel accident. What is the proper comparator for the purposes of Section 28C? The answer is not obvious. If a non-disabled child of secondary school age had a bowel accident at school, he would be expected to clean himself. If it was impossible for the child to remain at school, eg because there was no change of clothing for him, the school would send him home. If a disabled child who was able to clean himself had an accident, he would also be expected to clean himself unless he had a SSEN which imposed that responsibility on the school. Therefore, absent a much clearer duty on the school under a Statement than appears in this case, there can be no discrimination if he is sent home after a bowel accident. P Even if we are wrong about that, we accept that the School was justified in not cleaning A (particularly in view of the lifting required) because of the health and safety issues. Q With regard to the lack of privacy for physiotherapy and changing, we accept the evidence that this was a temporary arrangement, and the School did the best it could in the light of the building works. We find that A received no less favourable treatment than other pupils who required physiotherapy. As to the privacy for cleaning and changing we accept that the arrangement was justified.[36]For all these reasons, SENDIST dismissed Ms K’s claim.

The appeal to Mitting J

[37]After setting out the facts, and conducting a careful review of the statutory material, the judge considered firstly whether or not the provision of “education or associated services” in section 28A (2) of DDA 1995, construed in the light of the Code of Practice issued by the Disability Rights Commission and in the light of the definition of SEP contained in section 312(4) of EA 1996 Act, included cleaning and changing a child after a bowel accident. He concluded that, free of authority, he would have answered that question in the negative. He continued: - “Education” is not defined in the Act. Its ordinary dictionary meaning is:- "Systematic instruction, schooling or training given to the young ... in preparation for life."17. It is clearly not that, nor is it an "associated service". At its highest, it is what must be done to ensure for his own health and dignity, and the comfort of other pupils and staff that he can be taught in class. It does not advance his understanding of topics taught at school, or his ability to learn or to enjoy the other facilities of the school, such as sporting activities. It is personal care, not education or services associated with education.18. Case law supports the distinction between educational and non-educational provision, at least in the context of Part IV of EA 1996. (see W v Leeds County Council and SENDIST [2005] EWCA Civ 988 per Judge LJ in paragraph 37 when identifying what may be included in a Statement of Special Educational Needs: Consistent with the relevant statutory provision, Part 3 of the Statement must make provision for the educational needs specified in Part 2: no more, no less. Provision is not required to be made in Part 3 for matters of background and comment, nor even for needs which in the judgment of SENDIST do not amount to educational needs.19. There is, however, a substantial overlap between educational and non-educational provision (see the observations of Sedley LJ in London Borough of Bromley v Special Educational Needs Tribunal Others [1999] ELR 260 at pages 295 to 296:
"The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and if necessary SENDIST, to exercise a case-by-case judgment. …Whether a form of help needed by the child falls within this description is a question primarily for the LEA and secondarily for the SENDIST's expert judgment. If, but only if, SENDIST has gone wrong in law will the High Court overset its judgment." 20. In that case the decision of SENDIST that speech and language therapy, occupational therapy and physiotherapy could be classed as educational was upheld as disclosing no error of law. In this case SENDIST has made no decision on this issue largely because it was not invited to by either side. I have been urged to remit the case to SENDIST for reconsideration on this and other issues. I would do so if persuaded that there was a reasonable possibility that a Tribunal accurately directing itself as to the law could properly conclude that the cleaning and changing of A was an educational or associated service. I do not believe that it could. "
Systematic instruction, schooling or training given to the young ... in preparation for life." Consistent with the relevant statutory provision, Part 3 of the Statement must make provision for the educational needs specified in Part 2: no more, no less. Provision is not required to be made in Part 3 for matters of background and comment, nor even for needs which in the judgment of SENDIST do not amount to educational needs. "The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and if necessary SENDIST, to exercise a case-by-case judgment. …Whether a form of help needed by the child falls within this description is a question primarily for the LEA and secondarily for the SENDIST's expert judgment. If, but only if, SENDIST has gone wrong in law will the High Court overset its judgment."[38]Having cited paragraph O of SENDIST’s reasons, the judge concluded on this point by saying: - 24. SENDIST's instinctive view appears to have been that cleaning and changing A was not an educational or associated service: hence the conclusion that the School were not responsible for it, so that it was not "discrimination" if he was sent home after a bowel accident. 25. For those reasons I hold that the School did not discriminate against the appellant in the provision of educational or associated services. But SENDIST's finding at O is unhappily worded to deal with the two issues which were addressed to it: was the school in breach of its duty under section 28A (2) not to discriminate against A in the educational or associated services provided to him? Was it in breach of its duty under section 28C(1) to take such steps as it was reasonable for it to have to take to ensure that in relation to education and associated services provided for A he was not placed at a substantial disadvantage in comparison with pupils who were not disabled? 25. The comparison made with a child who was not disabled was apt in considering whether or not the duty under section 28A was breached, but not as SENDIST stated, section 28C. Section 28C required the school to take reasonable steps to overcome to effect of A's disability. SENDIST's reasoning is understandable if the reference to section 28C is taken as a misprint for section 28A. Because that is the obvious, and only, way to make sense of it, I take it to be so. Thus adjusted SENDIST's finding is one which it was entitled to make and discloses no error of law.27. It follows that SENDIST has not in paragraph O made any finding on the alternative case of a breach of duty under section 28C. If my conclusion was that SENDIST could not properly conclude that the cleaning and changing of A is not education or an associated service were wrong, it would be necessary to consider whether or not it was an "auxiliary service" within section 28C(2)(b). Again, this is an issue to which Sedley LJ's observation under the London Borough of Bromley and SENT apply, and I adopt the same approach as that which I have adopted to the definition of associated services.28. I conclude that a SENDIST accurately directing itself as to the law would be bound to conclude that cleaning and changing A was an "auxiliary...service". "Auxiliary aids and services" are things or persons which help. In the context of section 28C, the help is given for the purpose of education and associated services. A good example is given in the Code of Practice at paragraph 6.20: a hearing aid is an auxiliary aid. It helps the pupil to hear and so to learn. There is no duty on the school to provide it. Cleaning and changing A is a service. If it is related at all to education and associated services, it can only be so related as an auxiliary service. It helps A to attend class and so be educated. The purpose underlying the exclusion of auxiliary aids and services appears to be that they would ordinarily be provided or funded by a local education authority under Part IV of the Education Act 1996 so that it would be unreasonable to impose a collateral and supplemental burden on the school. Again, this reasoning may have underlain SENDIST's finding in paragraph 0 that the school was not responsible for cleaning and changing A.29. Mr Wolfe submitted that the task was not an auxiliary service because it could be performed by existing staff, by Mrs B and others, if necessary. This misreads the phrase "auxiliary service". The staff are not a service auxiliary or otherwise. It is the work that they perform which is auxiliary.30. In case those conclusions are wrong it is necessary to consider SENDIST's alternative finding in paragraph P:
"Even if we are wrong about that, we accept that the school was justified in not cleaning [A] (particularly in view of the lifting required) because of the health and safety issues."
This conclusion is unanswerable.[39]The judge then proceeds to explain those last four words of paragraph 30 of this judgment. He says: -31. By June 2004 Mrs L had been advised that it was dangerous for a member of staff to lift and clean A. The danger had manifested itself when Mrs E sustained a serious back injury when doing just that on 30 April 2004. Mrs L did the only thing which a responsible principal could do in those circumstances - reiterate her prohibition on lifting A and seeking the urgent help of the LEA. Any conclusion that she could have done anything else at that time would have been perverse.32. Mr Wolfe submits that she should not have got herself into that position and that there were adequate resources of money and staff to cope with A's needs. This was not the case put to SENDIST. In paragraphs 22 and 38 of the written submissions made to the Tribunal pursuant to its invitation at the conclusion of the day's hearing, the appellant's case was put thus: "22. Given the significant disadvantage that [A] would face, it is simply not enough to stop assisting a child with such important essential matters, without at least giving consideration to alternative methods of dealing with [A's] needs, and, for example, liaising with the LEA to get extra staff (if it was concluded that that was necessary.) …….. 38. For the avoidance of doubt, insofar as the school rely on lack of staff as justification for not changing [A], it is contended that this is not an answer, since they could have sought the assistance agreed by the LEA." 33. Unsurprisingly SENDIST made no finding that adequate resources and staff were in place to perform this task. In the absence of such a finding, an attack on SENDIST's conclusion in paragraph P on a question of law cannot succeed. Mr Wolfe also submitted that the school could only demonstrate that it fulfilled its duty under section 28C if, objectively, it could show that it had taken such steps as it was reasonable for it to have taken to ensure that A was not placed at a substantial disadvantage. His starting point is undoubtedly correct (see Collins v Royal National Theatre Board Limited [2004] 2 All ER 851.) He submits that Mr B's report was inadequate because he did not see or speak to A and assess the difficulty of lifting and cleaning him. SENDIST dismissed the suggestion in paragraph G with the observation that they would not have expected him to have done this. Mr Wolfe submits that this did not follow the guidance given by Munby J in AB X and Y v East Sussex County Council [2003] EWHC 167. 34. In other circumstances there may be force in Mr Wolfe's submissions, but not on the facts in this case. After Mrs E's accident Mrs L was confronted with a situation in which she had no choice but to act as she did. The acts of discrimination alleged resulted from that decision made in those circumstances. The decision fell to be judged in the light of those circumstances and not of others which might have obtained.[40]For these reasons, the judge dismissed Ms K’s appeal.

The attack on the judgment

[41]With characteristic energy and enthusiasm, Mr. Wolfe launched a root and branch attack both on SENDIST’s reasoning and the judge’s decision to dismiss Ms K’s appeal. Six grounds were advanced in the appellant’s notice. These were: - 1. The judge misdirected himself in law in holding that cleaning and changing A following a bowel accident was not capable of being “education or associated services” within the meaning of section 28A of DDA 1995 so as not to be capable of giving rise to less favourable treatment within the meaning of section 28A DDA 1995. 2. In any event, the judge erred in law in not approaching the matter on the basis that, whether or not the cleaning and changing was “education or associated services” (i.e. ground 1 above), A’s ordinary classroom experience was undoubtedly “education or associated services” such that not allowing staff to undertake that cleaning and changing (such that he had to leave the classroom and was sent home) was less favourable treatment (in that he was no longer with his peers in class). 3. The judge misdirected himself in law in holding that the cleaning and changing was necessarily and exclusively an “auxiliary aid or service” within the meaning of DDA 1995 section 28C. 4. The judge misdirected himself in law in holding that deployment of existing staff (whether provided by to the school in the light of A’s SSEN or independently of it) to undertake the cleaning and changing was not capable of being a “reasonable adjustment” which could be required within the meaning of DDA 1995, section 28C. 5. The judge misdirected himself in law in holding that provision (being directed at changing and cleaning) which was identified as SEP within Part 3 of A’s SSEN for which “SEN” were set out in its Part 2, was not in fact or in law actually or capable of being SEP. 6. The judge erred in law in holding that such matters were inevitably, and as a matter of law, non-educational provision rather than educational provision within the meaning of Part IV of EA 1996.

Discussion

[42]In my judgment, there is a very simple answer to this appeal. It is contained in paragraph P of SENDIST’s reasons, and in the final four words of paragraph 30 of Mitting J’s judgment. In my view, as Mitting J put it, the School has an unanswerable defence of justification to Ms K’s discrimination claim.[43]Mr. Wolfe, both in his skeleton argument and in oral submissions to us, made some interesting and powerful points. Were it necessary to address them, I would not find their resolution easy. It is apparent, for example, from the fresh SSEN dated 26 October 2005 that the LEA plainly regarded individual adult support for A’s personal care needs as SEP. In Part 3 of the SSEN, under the heading SEP, three “main educational objectives” for A are set out. The second of these is “to support his personal care and continence needs”. It is, therefore, clear beyond peradventure that from the LEA’s perspective, cleaning and changing A after a bowel accident comes within the definition of “education and associated services” as well as representing SEP. Thus, for example, were this court to find that changing and cleaning A was not SEP, that finding might cast unwanted doubt on the provision contained in Part 3 of the SSEN. That, it seems to me, is something to be avoided if at all possible.[44]Mr. Wolfe also addressed an interesting argument to us on the subject of comparators. He asserted that SENDIST identified the wrong comparator in paragraph O of its reasons, and relied on the reasoning of Stanley Burnton J in Norfolk County Council v. SENDIST [2004] EWHC 2921 (Admin) (Norfolk) at paragraph 70. Stanley Burnton J also cited and followed the reasoning of Silber J in McA Catholic High School v CC, PC and another [2003] EWHC 3045 (Admin).[45]Fortunately, it is, in my judgment, both inappropriate and unnecessary to decide whether or not Stanley Burnton J was right in his analysis in Norfolk of appropriate comparators in disability cases. Such a decision must, in my judgment, await a case in which the point arises directly for decision. Here, in my judgment, it does not.[46]It is also, in my judgment, unnecessary to address the analysis made by the judge of paragraph O of SENDIST’s reasons, and his conclusion that SENDIST meant DDA section 28A when it said DDA section 28C.[47]In my judgment, none of these points, interesting as they are, gets Mr. Wolfe very far, even if – as to which I express no opinion – he is right about them, for the very simple reason that, in my judgment, the school did not discriminate against A. It did not discriminate against him “in the education or associated services provided for, or offered to, pupils at the School” (DDA section 28A (2) because the refusal to change and clean him (which for the purposes of this argument I am prepared to hold comes within the definition of “less favourable treatment” within DDA section 28B(1)(a)) was justified under section 28B(1)(b).[48]I am equally of the opinion that there was no discrimination under section 28B (2) for the same reason. DDA section 28C(1)(b) required the School to “take such steps as it is reasonable for it to have to take to ensure that – in relation to education and associated services provided for, or offered to, pupils at the School by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disadvantaged”. This subsection, in my judgment, contains a number of hurdles which Ms K has to surmount. However, for present purposes I am content to assume, without deciding, that, by not cleaning and changing A the school did place him at a “substantial disadvantage” in relation to an “associated service”. In my judgment, on the facts of this case, the position remains that the School has two clear answers under section 28C(1)(b). The first is that it did take “such steps as it is reasonable for it to have to take”. The second is that its “failure” to comply with section 28C(1)(b) was justified.[49]I ask myself a simple question. Faced with the report from TB dated 22 October 2003, and in particular the passage cited by the judge in paragraph 7 of his judgment (paragraph 23 of this judgment) what was a responsible Head Teacher in Mrs. L’s position to do? In my judgment, the answer is obvious. The first is to repeat her instruction to her staff not to risk injury by lifting A. The second is to seek the assistance of the LEA, and, in particular, an amendment to A’s SSEN. Mrs. L did all three.[50]Mr Wolfe accused both SENDIST and the judge of inappropriately creating a non-existent barrier between the duties owed by the School under DDA 1995 and the SEN Provisions of EA 1996, Part IV. In my judgment, that criticism is not made out. It is certainly not my view. The School had complementary duties towards A. The first set of duties arose under EA 1996 and A’s SSEN. The second and complementary set of duties arose under DDA 1995. I see no dichotomy or barrier between those two sets of duties.[51]For the reasons I have already given, I do not think that the School discriminated against A under the relevant provisions of DDA 1995. Secondly, I am satisfied that the School fulfilled its duties towards A under EA 1996. In my judgment, the essence of the School’s duty to A under EA 1996 Part IV, as SENDIST found, was to provide him with the special educational provision set out in Part III of his SSEN. If additional provision for him was required, it could only be obtained through amendment of the SSEN. In so far as the School was required to take any “reasonable step” to cater for A’s disability, that step was to approach the LEA and, if assistance was not forthcoming voluntarily, to require the LEA to revisit the SSEN. As the judge found, this is what the School did.[52]It is in relation to the alteration of the SSEN that Ms K’s case takes on an unattractive aspect. She feared, it appears, that if the SSEN was revisited, the LEA would advise or insist upon A’s removal from the School and his placement in a different school. So, as was her right as A’s parent, she appears to have resisted the School’s attempts to have the SSEN revised.[53]In my judgment, if a parent obstructs the only realistic avenue open to a school to meet a disabled child’s particular needs, that parent cannot at the same time accuse the School of discriminating against the child if the School, as a consequence, is unable to provide the services which the child needs. It was, in my judgment, unrealistic for Ms K to expect the school to continue to provide a member of staff to clean A when the School had been advised in terms that to do so was not only dangerous, but unlawful.[54]It therefore seems to me, as it seemed to both SENDIST and the judge, that the School’s plea of justification is unanswerable unless one can find either in DDA 1995 or in EA 1996 a duty imposed on the School to continue to change A after the School had received the report from TB. That report was objective evidence that the practice of changing A operated by the School was both unlawful and dangerous. The School’s head-teacher, in my judgment, had no alternative but to instruct her staff not to attempt to change A. What other instruction could a responsible head teacher give? To have instructed a member of staff to lift and change A in the light of that report would have been, in my judgment, not only irresponsible: it would have been unlawful. Leaving on one side any criminal sanction for breaching health and safety regulations, continuing to lift A would certainly had laid the School open to an action for damages for personal injuries suffered by any member of staff involved in obeying an unreasonable, indeed unlawful instruction.[55]The School, I accept, had a duty to take reasonable steps under DDA section 28C (1). As Mr. Wolfe placed some weight on it, I have watched the DVD provided by the DfES and read the guidance. In my judgment, the steps needed to ensure that A was safely lifted, changed and cleaned do not come anywhere near the kind of “reasonable adjustment” identified in the DVD, and in my judgment it would have been quite unrealistic to expect the School to put in place the mechanisms properly required for changing and cleaning A. Such mechanisms are, in my judgment, well out with any definition of a “reasonable adjustment” capable of being put in place by a school without an application to the LEA for further resources.[56]In my judgment, the only way the problem could be resolved was through amendment of the SSEN, and had Ms K cooperated with the School, the necessary facilities would have been provided at a very much earlier stage.[57]In my judgment, therefore, there is no artificial, “hard-edged” division engineered by the court between the duties owed by the School under EA 1996 and DDA 1995. The two sets of duties complement each other. In the instant case, the duty owed to A by the LEA under EA 1996 could and should have been harnessed by Ms K in cooperation with the school at an early stage to meet A’s DDA needs.[58]In my judgment, therefore, the school, in summary, has a cast iron defence to a charge of discrimination on two grounds. In the first place, the responsibility for providing the additional facilities required to change and clean A lay with the LEA. The school’s duty was to put the SSEN into effect. It was unable to do so, and the only effective way of securing the necessary facilities was to amend the SSEN.[59]Secondly, the School was plainly justified in refusing to continue to change and clean A after the receipt of the Health and Safety Report. In fact, of course, we know that Mrs. E disobeyed instructions and continued to do so. She has paid a heavy price for her humanity and altruism. But her accident simply adds weight to the obvious proposition that changing and cleaning A without the proper equipment, facilities and training was dangerous, and that the school’s refusal to continue to do so was manifestly justified.[60]I would therefore dismiss this appeal.[61]I cannot, however, leave this case without making two further comments. Firstly, it is, I think, most unfortunate that Ms K has chosen to go down the discrimination route. Much time and money has been spent unnecessarily, and, no doubt, much ill-feeling engendered. I am, however, confident that the School will have the professionalism to continue to put A’s interests first and I hope very much that he will do well in his GCSEs and beyond.[62]The second it that whilst I have every sympathy with Ms K as the mother of a disabled child, and whilst I would expect her to fight her child’s corner tenaciously, I share SENDIST’s dismay that her solicitor was instructed to accuse Mrs E of not telling the truth about the manner in which she received the injury to her back. I cannot but feel that if any apology is due, it is not from the school to Ms K, but from Ms K to Mrs. E.[63]I agree.[64]I also agree, for the reasons given by Wall LJ, that the appeal should be dismissed.

Cited in 3 later judgments