| SPOTLIGHT |
The London Borough of Redbridge was entitled to operate a decentralised system of specialist support under which teaching assistants are employed directly by schools, the Court of Appeal has ruled.
ZK is a 13-year-old girl who is blind and partially deaf and requires a high level of support at the mainstream school she attends.
Her challenge was to Redbridge’s decision not to have a centralised model of specialist educational support teachers who would be seconded to help children with visual impairment in mainstream schools.
In ZK v London Borough of Redbridge [2020] EWCA Civ 1597 ZK argued that the decentralised model was incapable of meeting the needs of children such as herself.
She said the assistants were responsible only to the head teacher with no central input from the local authority.
That meant they often lacked training in certain fields - such as braille - and rarely had skills in science, technology, engineering and mathematics.
Pupils were left vulnerable to having no adequately skilled support if they moved schools or if an assistant were absent.
She argued that the decentralised model resulted in a lack of choice of schools for pupils with such disabilities and risked them being forced out of mainstream schools into specialist education at long distances from home.
ZK brought her challenge to Swift J’s earlier rejection of an application for judicial review.
She said the judge had been wrong to find that Redbridge's decentralised model was not irrational and/or unlawful because he failed to apply the correct test and erred in his interpretation of section 42 of the Children and Families Act 2014.
ZK further argued that Swift J erred in finding that the decentralised model did not disadvantage children with severe visual impairment and in inferring compliance with the duty under section 149 of the Equality Act 2010.
Rejecting ZK’s case, Lady Justice Simler said: “What matters in a systemic challenge of this kind is the need to distinguish between an inherent failure in the system challenged and individual examples of failings or unfairness which do not touch on that system’s integrity, however difficult it might be in practice to distinguish between those two situations.”
Swift J had done as he should in distinguishing between systemic problem and individual or other failures. Simler J said she was satisfied that Swift J's analysis of the law was correct and he was “amply entitled to conclude that the arrangements in place under which specialist teaching assistants are employed by schools and trained and supported…are sufficient when considered at a systemic level, and do not entail any inherent likelihood that Redbridge will fail to comply with its section 42 obligations”.
The premise for the unlawful discrimination claims was that the decentralised model has a disproportionate adverse impact on pupils in mainstream schools with severe special educational needs, the judge said.
But she said Swift J “made no findings of specific failings or breaches and was not invited to do so” in relation to section 42 of the Children and Families Act 2014 and so “this court cannot make such findings either”.
He had expressly addressed the contention that ZK's choice of school was narrowed by the decentralised model and concluded it was not.
Simler J said that Redbridge had not needed to refer expressly to the public sector equality duty in order to comply with it.
Lord Justice Baker and Lady Justice Rose agreed.
Mark Smulian
