The UT has now given its decision in two cases which raised the question of whether, when a maintained school becomes an academy, any remaining discrimination claim is answered by the academy (which, after all, is likely to have the same staff, the same policies, etc, as the school it replaced) or whether liability for the claim (and thus the alleged discrimination) transfers to the local authority (which is most unlikely to be culpable in any way for the alleged discrimination).
Parents of pupils at maintained schools can challenge what they think are acts of unlawful discrimination by the school. If what they allege is race or sex discrimination, then they bring a legal claim in the county court. If what they allege is disability discrimination, then they can bring a claim in the SENDIST.
Complaints of disability discrimination often relate to an allegation that the school has not made what are known as “reasonable adjustments”, say in relation to exam arrangements, or the arrangements for a school trip.
In their complaint to the SENDIST, a parent can ask the Tribunal to order the school to apologise, or to provide disability training for staff, or to change its policies (say, in relation to school trips) to make them work for disabled pupils. However, the SENDIST cannot order a school to pay compensation (unlike for race and sex claims in the county court, where compensation can be claimed).
Disability discrimination claims to the SENDIST must be brought within 6 months of whatever is being complained about (the trip, the exams, etc).
But what happens if, in that 6 month period, the maintained school becomes an academy? Or if the conversion takes place after the claim has been made to the SENDIST but before the SENDIST process (which can take several months) has been concluded?
I have previously noted two cases before the UT raising the issue.
The UT has now given its decision on them.
It has held that the process of conversion in the two cases meant that the claims were now directed at the local authorities involved.
That is a particularly odd outcome given that, in one of the cases, the local authority had actually assisted the parent at the time of the alleged discrimination in her argument with the (then) maintained school and, in essence, agrees that the school failed to make the reasonable adjustments she sought.
I won’t try and summarise the decision – read it yourself. But I do note that:
- the judge found that the process of converting a maintained school implies discontinuance of the maintained school, the effect of which is that the governing body is dissolved and all liabilities transfer to the local authority (para 12).
- the judge doubted that the tribunal should order (for example) policy changes where the child is no longer at the school (para 21) – that is of much wider implication
- the judge suggested that a school which apologises in response to an order to do so is accepting that it acted unlawfully and implicitly ‘conveying an assurance’ it will not repeat the conduct (para 22) – I am not sure schools see it that way!
- the judge suggested that compliance with tribunal orders can be enforced by the Secretary of State “through the enforcement obligations under funding agreements” (para 26) but he does not say what he has in mind in the funding agreement, and I am not clear what it could be
- the judge suggested that a judicial review could be brought against an academy to try and enforce compliance with a tribunal order (para 26)
- the judge found that a declaration that a school’s policy was unlawful (presumably by its discriminatory effect) implies an obligation to amend the policy which is owed to other parents and pupils (who could thus, presumably, bring a JR (as in 5 above) (para 27)
- the judge contemplated academies being joined as parties to the proceedings in those cases where liability has transferred as above (para 29)
- the judge considered that amendments made by the Education Act 2011 “may well” mean that the problem (of liability transfer) will not arise in future (para 38).
So, overall, plenty of food for thought on academies but also on the process and practice of discrimination claims against schools more generally.