5. Poor comprehension of ‘disability discrimination' legislation...
On Friday, 8th December 2006, Freya Newberry, the school's SENCO emailed me saying:
"I rang Mrs O'Dwyer this afternoon to ask that Josie does not stay to homework club from now on. We cannot guarantee close 1:1 supervision at that time. There is one TA on duty in the homework club, which takes place in two linked rooms. There are a number of students all requiring the TA's attention and time, and so Josie could be left unsupervised. Josie is only receiving a very small amount of homework and will be able to complete it at home. She has also shown herself to be very reluctant to do homework in homework club, preferring to try and play computer games instead, which is not allowed and which is an unnecessary issue for the TA to deal with."
I replied to Mrs Newberry by email on the 10th December saying:
"I'm sure that you'll understand my surprise on receiving the news that you want Josie to stop going to the Homework Club after School. After all, there's no record of misbehaviour by Josie at the Homework Club. Is there? You didn't mention any problems when we met last Wednesday (29th November 2006).
And, you did confirm (more than once) that you'd scheduled in 1:1 adult support for Josie for the three afternoons that she stayed after school.
So, I'd like to know, what has changed for you to now say "We cannot guarantee close 1:1 supervision at that time." and I look forward to hearing back from you as soon as possible on this."
Mrs Newberry emailed me back on the 13th December 2006 saying:
"Josie does not need to attend homework club after school, as she has very little, if any, homework. Also she is in the Hive at lunchtimes, and homework can be done then. I explained this to Mrs O'Dwyer and she agreed. Perhaps you have misunderstood what happens in the Hive after school - it is not a "Club" in the sense of children having fun, or of being entertained / supervised until convenient times for parents. It is an opportunity for those youngsters to receive help with homework who would otherwise not be able to do it; it is a quiet and ordered time only for homework. One TA is on duty and has a number of youngsters to give support to. It is a voluntary act on the TA's part and is not part of their contracted hours. As you have been so specific about the close 1:1 supervision you would like for Josie, the school felt they were not in a position to provide this after school, given the nature of the homework time. I stress again, nor is it necessary for Josie."
I emailed Mrs Newberry on 18th December 2006, asking her to provide answers to the specific questions I'd raised in my previous email.
I didn't receive a reply.
I then raised the matter during a meeting at Ringwood School on Tuesday 9th January 2007.
Present at the meeting was: Mrs Edwards, Headteacher Mrs Freya Newberry, SENCo Mrs Chris Russell, Senior Educational Psychologist, Myself and Mrs O'Dwyer.
I put it to the Headteacher that Josie's exclusion from the after school "Homework Club" (by Freya Newberry) was a clear case of 'disability discrimination' and unlawful.
Why Josie's ‘exclusion' was unlawful discrimination:
To remain within the law, the school must not discriminate against disabled pupils in their arrangements, in the education and associated services they provide, or in relation to exclusions from the school.
The legislation explicitly includes ‘after-school clubs'.
The law also requires that schools do not treat disabled pupils ‘less favourably' because of their disability, without justification.
Schools must also make ‘reasonable adjustments' so that disabled pupils are not disadvantaged compared with pupils who are not disabled.
By excluding Josie from the after school Homework Club, the school was clearly treating Josie "less favourably" than other pupils - and for a reason related directly to her disability (i.e. her need for close adult supervision.)
Was the school's exclusion of Josie capable of being 'justifiable' in law?
Well, the ORIGINAL reasons given by the school could not be regarded as significant enough to justify the decision to exclude Josie from the after school Homework Club. (i.e. “We cannot guarantee close 1:1 supervision at that time" / "Josie could be left unsupervised” / “As you have been so specific about the close 1:1 supervision you would like for Josie, the school felt they were not in a position to provide this after school, given the nature of the homework time.”)
And, the subsequent explanation put forward by the school for ‘excluding' Josie from the after school Homework Club (i.e. that the amount of homework Josie was being given didn't warrant her being provided with the use of the facility) was simply untrue.
I can say with absolute certainty that prior to the decision to ‘exclude' Josie there had been no change whatsoever in the amount of Homework Josie was being given. I can also prove that the amount of Homework Josie was being given at the time of her ‘exclusion' meant that she could not complete it all during the lunchtime Homework Club. (The 'evidence appears in Josie's School Diary and her ‘Home to School Book'.)
Had there been any reports of adverse incidents involving Josie the after school Homework Club?
Prior to the school's decision to ‘exclude' Josie, we (Josie's parents) had not been informed of any adverse incidents or problems occurring during the after school Homework Club.
(Note: A series of incidents had occurred at the school and this had been communicated to us via comments made in Josie's Home to School Book.)
So, what had prompted the decision to ‘exclude' Josie from the after school Homework Club?
Well, the school's decision to exclude Josie from the after school Homework Club followed a ‘review' by Mrs Newberry, SENCo, of the school's arrangements for supporting Josie. That 'review' was prompted by a meeting at the school on Wednesday 29th November 2006, during which I had questioned the level of adult support provided for Josie whilst she was at school. The outcome of the meeting was that Miss Paine, Assistant Headteacher agreed that Josie would be supervised 1:1 by a responsible adult during all unstructured time until such time as it was agreed by all parties that it was no longer necessary. Significantly, during that meeting, Mrs Newberry, SENCo, said that Josie was receiving 32 hours support including an extra hour after school on three days a week (i.e. to cover the time Josie spends at the after school Homework Club and the after school Dance Club.) The 'Minutes' produced by the school for the meeting confirm this. However, Mrs Newberry's email to me dated Friday, 8th December 2006, stated there was ".... only one TA on duty in the homework club, which takes place in two linked rooms. There are a number of students all requiring the TA's attention and time, and so Josie could be left unsupervised."
So, (it seems plain enough to me!), the decision to exclude Josie was taken unilaterally by Mrs Newberry, SENCo, when she realised that the school could no longer continue to conceal from us (i.e. Josie's parents) the fact that, notwithstanding the claims she'd made at the meeting on the 29th November (see above), Josie was not actually being supported 1:1 by a member of staff during the time she spent at the after school Homework Club - and resource exigencies meant that providing the agreed level of support was simply not going to be possible.
In any event, despite my explanation of the legal situation, the Headteacher, Mrs Edwards, said she did not consider the situation amounted to an 'exclusion' or discrimination of any kind.
When I invited Senior Educational Psychologist, Chris Russell, to comment on the legality of Josie's 'exclusion' from the after school Homework Club she said she could see both sides of the issue but, that whilst it may be within the LEA's brief, it was outside her remit as an Educational Psycologist to comment. She said she would inform Mr Len Brazier, Principal Education Officer (SEN) at Dorset LEA, that I had raised the issue and that he would delegate someone to look into it.
Shortly after the meeting, I emailed Mr Brazier requesting immediate intervention by Dorset LEA to prevent a continuation of Josie's unlawful exclusion from the after school 'Homework' Club. I pointed out that LEAs have a duty under the Disability Discrimination Act and the Human Rights Act to prevent unlawful discrimination taking place. However, all Mr Brazier would say was that I should take up my concerns with the school - which I interpreted as the Dorset LEA was not going to take any action on the matters I had complained about.
Prior to receiving Mr Brazier's advice, I had actually already referred my complaint to Rev'd Cannon John Turpin, the Chairman of the Ringwood School Board of Governors, in a (detailed) letter dated 23rd January 2007.
I received a reply on 30th January. In short, Rev'd Turpin said in his letter that he believed the school's decision to exclude Josie from the after school Homework Club was not a breach of the Disability Discrimination Act. He qualified his assertion by saying "Clearly this is not something which falls under the Disability Discrimination Act as the fact of her (Josie's) disability has no bearing on the issue at stake."
I appealed against the decision and a 'Hearing' was arranged for Monday 26th February 2007, at the school. The 'Panel' comprised, Paul Goding (Chair), Mrs Anne Osborne and Mr Michael Salt.
It was all very civilised.
I put my case to the Panel and Chris Edwards, the Headteacher then put the case for the school.
I asked whether Mrs Edwards or any of the Panel had had any training on the Disability Discrimination Act and the answer I got was that none of them had.
I asked whether the Panel had taken any legal advice or guidance on the law prior to attending the meeting. Mr Goding confirmed that they had not.
I asked Mrs Edwards whether the amount of homework that Josie was being given had been reduced recently. She said "No."
I asked Mrs Edwards whether the reason for Josie's exclusion from the After School Club was recorded on her file. Mrs Edwards said it was not.
I was then told that the Panel's decision would be advised to me in writing.
I left the 'Hearing' feeling sure I had convinced the Panel of the illegality of the school's action and confident that the Panel's decision would reflect that. However, I was to learn, in a letter from Paul Goding, dated 27th February, that the Panel had "carefully considered the representations made at the meeting" and decided that "... the Headteacher, in the light of the information available at the time acted reasonably and the Headteacher and the Chair of Governors correctly adhered to the procedures."
I initially interpreted the decision to mean that the Board of Governors were of the view that the the school had not acted unlawfully. But, on re-reading Mr Goding's wording, I realised that I was mistaken and that in fact what the Panel were saying was that they believed the Headteacher had acted reasonably "in the light of the information available to her at the time" (and, of course, having not had any training or guidance on the Disability Discrimination legislation, Mrs Edwards was probably not, at the material time, cognisant that the exclusion amounted to unlawful discrimination.)
In other words, without actually admitting the 'offence', the Panel had acknowledged that what had happened was not legal.
(The bit about the Chair and the Headteacher correctly adhering to the procedures was simply to confirm that the main function of the Complaints Panel, i.e. to ensure that the complaint has been correctly handled by the Headteacher and the Chair of Governors and that a sufficiently comprehensive investigation had been carried out.)
Whilst I wasn't satisfied with the Panel's decision, Josie was transferred to a new school pretty soon afterwards and further 'conflict' with the school was therefore avoided.
The warning to others who may be affected, is that - on their own admission - the Headteacher and the Panel of Governors were unaware of (and had not been given any training on) the Disability Discrimination Act and how it impacts on the education service they provide.