Education case law update: June to December 2023

Leon Glenister sets out the key learning points from recent judgments involving schools, special educational needs, and higher education.

Schools

R (TZA) v A Secondary School [2023] EWHC 1722 (Admin)

Key issues: public sector equality duty (PSED), exclusions

There is no specific requirement on a Headteacher to produce documentary evidence of consideration of PSED prior to an exclusion. The requirement is that “due regard” is in fact paid.
Governors considering a Headteacher’s decision to exclude are entitled to rely upon the Headteacher’s account given to them orally in relation to consideration of PSED, and weigh that evidence.
A Governors Disciplinary Committee need not rehearse in its reasons on every point raised, but had to provide reasons so the parties understood the decision and so errors in the decision could be identified.

Special educational needs

R (AI) v Wandsworth LBC [2023] EWHC 2088 (Admin)

Key issues: public sector equality duty, transgender persons

C had multiple educational placements named in his Education Health and Care Plan break down following him transitioning. He said the local authority (LA) breached PSED in its discharge of securing special educational provision under section 42 of the Children and Families Act 2014 (CFA 2014).
Court found no breach. The statutory scheme was to discharge LA duties based on individual needs, and in that regard it was impossible to argue no due regard had been had in respect of individual. There was no overarching policy choice – section 42 imposed an obligation to provide what is set out in the EHCP. There was also no failure to monitor the ongoing impacts of misgendering and the “due regard” duty did not require the inquiries which the Claimant suggested.

Key issues: extended day curriculum, consistency of approach, what is educational and what is social care provision, review of FTT decisions

It was open to the FTT to consider ‘mentoring support’ as being educational. The Upper Tribunal considered “[s]omething which supports (or even facilitates) education can lawfully be educational provision”.
The UT left open the question of whether special educational provision (section 21(1) CFA 2014) and ‘deemed’ special educational provision’ (section 21(5) CFA 2014) are mutually exclusive.
A consistency of approach may on the facts require special educational provision outside the school day, the question is whether it is necessary of the child or young person to have an extended extracurricular programme after the school day or term. However, it would only be in “extremely rare cases” where consistency alone would justify programmes of learning beyond the school day.
The UT provided guidance on review of FTT decisions, which are intended to be an alternative remedy to appeal. The key question for discretion is what would best advance the overriding objective

Key issues: failure to assess

Reminds that the test of whether a child “may” have special educational needs such that it should carry out a statutory assessment is “a low test” (§3)
Where an LA concedes an appeal but does not obtain an order from the FTT, then the time for carrying out the assessment is 20 weeks from the request (§16)
The duties in relation to assessments in the SEND Regulations 2014 are hard edged legal duties and not “best endeavours” duties (§17)
Challenging a decision of a failure to carry out an assessment within the time period (rather than a refusal to assess) cannot be appealed to the FTT and is a matter for judicial review (§32)

Key issues: appropriate or suitable; EOTAS; extended transition

There may be a difference, on the facts of a case, between the tests of whether a placement is “suitable” or “appropriate” (§19-20)
The UT left open the question of whether, where a child needs an extended transition to a placement, that placement should be named in Section I (§28-32)

Higher education

Key issues: discrimination, article 2 protocol 1, prisoners, out of time claim

A prisoner challenged the rules relating to student loans. The regulations provided that the student loan would meet the cost of the course only; in contrast to non-prisoners who could use the surplus for other costs. The Court found this complaint out of time on the basis the regulations were given effect to long before the claim. It however considered any difference in treatment was justified as incarcerated students do not have living expenses and other outgoings.
There was a further challenge to an the lack of access to library facilities which it was argued breached the Claimant’s a2p1 ECHR right. This was rejected on the facts, there were impediments at the prison but no systemic under-provision.
The Claimant challenged a particular decision to withdraw his Chromebook, which succeeded on the facts as the conclusion that the use was not for his course was found unsustainable.

Key issues: OIA, alternative dispute resolution

C had applied for group litigation order in proceedings about breach of contract for a failure to provide in-person tuition during strike action and the COVID-19 pandemic. UCL sought a stay of proceedings for the OIA procedure to be used. Application was granted.
Court exercised discretion to grant a stay. It was not Parliament’s intention to give the OIA exclusive jurisdiction in respect of student complaints but it was intended to be the usual first process for complaints before embarking on litigation. There was some doubt about the utility of the OIA process here, but a stay would encourage the parties to engage in some ADR which may end a substantial number of claims.