What to do when things go wrong with SEND
That’s not fair – Disability discrimination
There is law to protect people from being treated unfairly. This includes people with disabilities. This law is called the Equality Act 2010. Any service provider must follow the Equality Act. This includes local authorities, health organisations, any type of school or education provider.
We suggest you follow the steps in order:
- First check – is my child disabled?
- Is my concern likely to be discrimination?
- Discuss informally with the provider
- Make a complaint using the provider’s complaints process
- Make a complaint to Ofsted or the Department for Education (for schools and early years settings) or the Education, Skills and Funding Agency (EFSA) (for further education colleges)
- Make a disability discrimination claim – this will be using the SEND Tribunal if the alleged discrimination took place in a school or using the County Court if it happened elsewhere.
View further information about each step below:
A child or young person is disabled under the Equality Act 2010 (section 6) if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
- Is there a physical or mental impairment?
- Does the impairment have an effect on the child or young person’s ability to carry out normal day-to-day activities? Is the effect substantial?
- Is the substantial effect long-term?
There are different types of disability discrimination. View:
- Types of disability discrimination | (IPSEA) Independent Provider of Special Education Advice
- For early years settings: Disabled children and the Equality Act - early years’ settings and Disabled Children and the Equality Act 2010: What Early Years providers need to know and do (PDF, 984 KB)
- For schools: Disabled children and the Equality Act and schools
- For further education colleges: Discrimination in Further Education | Disability charity Scope UK
- The Equality Advisory and Support Service website has a very useful interactive checklist: Advice and Support - Equality Advisory and Support Service (equalityadvisoryservice.com)
In particular, try to be clear about:
- which provision, practice or criteria was discriminatory? What was done which was unfair?
- was there a failure to make a reasonable adjustment which caused your child to be disadvantaged compared to non-disabled children? Could something have been done to help?
- was your child significantly impacted by this disadvantageous treatment? How did the unfair action affect your child?
You could email the head or principal of the setting, school or college to ask for a meeting to discuss your concerns. Try to appear as reasonable as possible, your concerns are more likely to be dealt with effectively if you:
- set your concerns out briefly and clearly
- avoid angry language
- avoid blaming anyone for what has happened
- explain what the provider can do to make things better
Before the meeting, make a short list or notes of what you want to say, as these will help you to remember. You will need to talk about what has happened which has caused your concern, but the focus should be on the future. Take a friend with you for moral support.
View the complaining process.
This is for schools and early years settings or the Education, Skills and Funding Agency (EFSA) for further education colleges.
You can forward your complaint beyond the school, setting or college if you feel your concerns have not been addressed. View: Complaining to the Department for Education about a school or college | (IPSEA) Independent Provider of Special Education Advice
This should be a last resort. View: Things to consider before making a claim | (IPSEA) Independent Provider of Special Education Advice
This will be using:
- the SEND Tribunal if the alleged discrimination took place in a school or
- using the County Court if it happened elsewhere.
To make a claim to the SEND Tribunal, you must send the form within six months of the latest act of discrimination by the school.
Disability discrimination claim against a school
You can complain to the tribunal if you’re:
- someone with parental responsibility for a young person, or their foster parent or carer
- a young person over school leaving age but under 18
You can complain to the tribunal about:
- a school, nursery or pupil referral unit maintained by a local authority
- an independent school
- a free school, including an academy
You cannot complain to the tribunal about:
- a private nursery, unless it’s part of a school
- a further education college
- an organisation using a school’s premises
Guidance about claims against disability discrimination in schools:
- A guide to claim against disability discrimination in schools - a guide for parents
- Disability discrimination in schools
- Technical Guidance for Schools in England
- Reasonable adjustments for disabled pupils (.DOCX, 79.6 KB)
Forms from the SEND tribunal for claims against disability discrimination in schools:
- Disability discrimination claim by a parent – Form 4A
- Disability discrimination claim by a young person – Form 4B
- Disability discrimination claim after a permanent exclusion - parent appeal form SEND 26A (not wanting reinstatement)
- Disability discrimination claim after a permanent exclusion – young person appeal form (wanting reinstatement)
- Additional claim forms
Disability discrimination claims against private nurseries and further education colleges
Disability discrimination claims when other than a school are covered by part 3 of the Equality Act 2010. They are not heard by the SEND Tribunal but the County Court. Service users will need advice from a solicitor. They may be eligible for free legal aid – there is information about this here: Where can I get help with making an appeal?
Guidance about claims against disability discrimination in further education colleges:
Equality Act 2010 Technical Guidance on Further and Higher Education.