D, R (on the application of) v Plymouth High School for Girls

MR JUSTICE COLLINS: This is an appeal by one I shall call "D" from the decision of the Special Educational Needs and Disability Tribunal which rejected the complaint made that the school which she was attending had unlawfully discriminated against her.

D has the misfortune to suffer from visual impairment. The result of that is that she, as the Tribunal put it, "needs to see at 6 metres what a normally sighted person can clearly see at 18 metres", and the result is that she has a Statement of Special Educational Needs and has the support of a Learning Support Assistant at school, and indeed a Mrs Fell has been her support for I think some three years or so.

The problem which has resulted in this appeal stems from the school's requirement that in year 10 pupils should have the opportunity to attend work placements. All the pupils are encouraged to take a placement because it is seen as a way of broadening their experiences.

Students are advised on the personal and social aspects of the arrangements and are briefed on the process. Advice is given over the course of year 10, and pupils are encouraged as part of the process to find their own placements.

To that end, each student is required to fill out a form in which she sets out three choices in order of preference, which are taken from, I assume, a list, or provided by the school, of what placements are available. That form is required to be signed by the parent or guardian.

D put on the form three choices, which were: first, a media placement; secondly, a placement at the primary school which she had attended; and, thirdly, a placement involving working with animals. Apparently, she hoped, or believed, that that third placement could be at a pet shelter.

She indicated on the form the reasons why she had chosen the three placements. She had said that she wanted to work in media when she was older, and possibly film work and radio because she enjoyed being creative, and this part of the media world she had little experience in.

The primary school was because she loved working with children and teaching was something she had had experience with at the drama and music club she attended.

The pets was because there was not much left, but she did like working with animals, and she said that the day to day care of animals in residential homes was of interest to her.

The form on its face, where the signature of the parent or guardian is to be made, has these words:

There is no room for anything to be written against that question, save possibly the words "yes" or "no". In fact, it was left blank, and the reason why it was left blank, as D's mother indicated, was because, (indeed this was something which was in the Statement of Special Educational Needs and was well known to the school) D did not like attention being drawn to her disability and did not like to be treated differently. The Statement said that she disliked the term "visually impaired".

It seems that, for whatever reason, those responsible at the school failed to notice that nothing had been put in answer to the question about a medical condition.

The school itself does not make the detailed arrangements for the individual placements. It has a contract with an enterprise called Tamar Education Business and that in its turn has a contract with a national charity called Trident, which manages and administers the work placements in question. It is Trident which checks the various placements to ensure that they are potentially suitable and that there are no risks involved to health and safety in them and, equally, it is Trident's responsibility to ensure that the individual pupil is suitable for the placement in question.

Obviously, Trident does that in discussion with the school and there is a meeting held, as there was in this case, involving two representatives from the school and a Mr Greenley, who was the representative from Trident, and no doubt the relevant numbers of forms were gone through at that meeting. I am told there were over a hundred students who were in the tenth year and therefore who would need the various placements.

It seems that during the meeting, a Mrs Payne, who was head of the year, informed Mr Greenley that D was visually impaired and that the employer would therefore need to be consulted, and it was noted that the medical declaration had not been made.

Nothing was done at the matching meeting to inform D, or indeed to ensure that the necessary information could be provided to the potential employers.

More importantly, it had been decided that the first possibility, the media placement, was not suitable. It was said that that was not suitable because it involved no more than filing and that was not consistent with what D had indicated was the reason behind her choice.

It also appears, according to the findings and indeed according to the case put forward on behalf of the school Governors, that Miss Payne certainly was aware of D's visual impairment and that weighed with her in deciding that the media placement involved was inappropriate.

As the Tribunal found at paragraph 26:

The primary school, which was D's specific choice, was not considered suitable because, it was said of three matters. Firstly, D had been a pupil at the school and it was policy not to place ex-pupils in their old school, wherever possible, but it is perfectly plain from the findings of the Tribunal, and indeed the evidence put before it, that that was not a rigid policy. It was simply regarded as undesirable that the placement should be at the primary school which the pupil had attended.

Secondly, it was believed, wrongly, that D still had a brother at that school. That is something which could easily have been discovered to have been wrong.

Thirdly, it was said, (although this appears to have been something said ex post facto and not something which was raised at the time) that relationships between D's mother and the school had at times been strained.

In any event, that placement was rejected. It was not considered, apparently, in the light of D's disability because one seems to have thought that it might be possible that D regarded her old school as suitable because she would feel at home there and her disability would not be something which in any way adversely affected that particular work experience.

Finally, there was the possibility of the pet shop. It was not in fact an animal shelter, but the only placement involving animals was a pet shop.

When the possibility of the pet shop was mentioned to the Learning Support Assistant, she said that from her own knowledge of the pet shop, it was cluttered and somewhat small and she thought that D would not be able to cope there because of her disability.

So it was that although the pet shop was left open, nevertheless there was effectively a rejection of the three choices which D had made.

Unfortunately, D's mother had not been entirely happy with the actions of the school over a number of years. There is no clear evidence as to the extent to which she had expressed those concerns before this particular matter blew up, but the result was that D herself was very upset at what was perceived as a refusal or a failure to give D any of the placements for which she had asked because of discrimination based on her disability. That was what was believed.

The school, it is fair to say, endeavoured to persuade her mother to agree that the medical information necessary should be disclosed and that D should make further choices which were available, particularly choices in relation to going to other primary schools.

But a degree of entrenchment took place. On 8_th_ April 2003, which is shortly after the problems had been identified and the refusal had been notified, she wrote a letter to Mrs Payne, the head of D's year, and she said that it was not the first time that D had received an inappropriate response from the school and referred to some problem that had occurred during PE. That is a matter that gave rise to a complaint, but it is not a matter which is relevant to my consideration of this appeal.

There was concern there expressed about disclosing personal information. What D's mother said was this:

I think she may mean not to disclose personal information. She goes on:

Sometimes, when advice is given by well meaning organisations and reference is made to Conventions on Human Rights and United Nations charters, things tend to get a little out of hand, and focus on the realities gets a little obscured.

There is no question but that a discussion and an explanation as to what the problem was and what the way round might be would have helped. I do not blame either side, particularly where there were, as it seems to me, faults on both sides, but I emphasise that all this was after the original decision which is the subject of the main complaint of discrimination.

Going back to the Tribunal decision, it is recorded, as indeed was the case, that Mr Greenley of Trident would not permit any placement to proceed if the medical declaration was not made because he had a responsibility to ensure that employers were informed of all relevant information.

As I have said, it was plain that D's mother originally had believed that the school had all the information and therefore it was not necessary for her to provide any information or to indicate on the form that there was any disability. She expected the school to pass on that information in so far as material to those responsible for any placements. Certainly, she had not indicated that there was a requirement of confidentiality in relation to the problems which D faced.

The Tribunal then had to consider whether the complaint of discrimination was made out. The statutory provisions which are material are contained in sections 28A to section 28I of the Disability Discrimination Act 1995, those sections being inserted by the Special Educational Needs and Disability Act 2001.

Section 28A provides, by subsection (2):

Section 28B deals with the meaning of discrimination. Subsection (1) provides:

Subsection (2):

In order to decide whether discrimination is justified, it is provided by subsection (6) of 28B:

Subsection (7):

Section 28C provides, by subsection (1)(b), that:

That in itself indicates the true comparator. It is the disabled pupil, as against the pupil who is not disabled. Indeed, that is I think what one would expect in any event.

The Tribunal noted that it was clear that Trident put great emphasis on full disclosure of medical matters and their conclusion was that the reason why the treatment took place was not because of D's disability, but was because of the failure to complete the form, and they were satisfied that Mr Greenley would have responded in a similar way to any pupil.

They go on to refer to the process for reselection and point out that D did not pursue that. That was because there was an ongoing failure to provide for disclosure of D's disability.

Then in these paragraphs (I, J and K) they say this:

It seems to me quite impossible to justify that reasoning. If it were the case that the failure to disclose the medical information could be said to be wholly the fault of D or her mother, then it is possible that that line of reasoning might have more validity, but the reality is that it was not.

There was absolutely no reason why the school, who after all knew about D's disability, should not in a covering letter or in some other way have informed Trident that she had this relevant disability.

The reality is in my judgment that they should have done a lot more in advance and there were steps within the meaning of 28C(1) that they should have taken to ensure that there was no substantial disadvantage to D, as compared with other pupils, because of her visual impairment.

They knew that work placement was a requirement of all in the 10th year. They knew that, for obvious reasons, any disability was material, certainly any disability such as D suffered, and any potential employer would want to know about it, and indeed they must have known that Trident would want to know about it so as to enable the information to be passed on.

In those circumstances, it seems to me that it would have been wholly reasonable, and indeed necessary, for some advance action to have been taken, such as obtaining information from D through her mother; from the specialist who was dealing with D in the form perhaps of a short report indicating what the exact difficulty was and what its effect on D might be; discussion with D as to what she believed and what she really was capable of doing when it came to choice of placement; and explanation to D's mother of the need to disclose the medical condition.

If D's mother or D had refused to allow any such disclosure and had claimed a degree of confidentiality, that is a matter that then no doubt would have been discussed and it would have been pointed out to them that they were making it well-nigh impossible for D to obtain a placement in the circumstances.

That would have been the way to deal with it and I would be exceedingly surprised if, had it been dealt with in that sort of fashion, D's mother would have raised any objections to what was proposed. Indeed, if she had, she would have clearly been acting unreasonably and I am sure that she would not have done that.

But, as I say, none of that was done. Instead, the form was filled in. I have a high degree of scepticism as to whether if the answer "yes" had been put against "do you suffer from any medical condition?", it would have made any difference to what actually happened.

But the reality is, as I say, the necessary information could and should have been passed on to Trident following the discussions. As it was, no such information was passed on and the non-disclosure cannot conceivably in my judgment be said to have been the fault of D, rather than the responsibility of the school.

In those circumstances, it is quite impossible to say that the treatment was justified by the mere fact that the form had not been filled in with that relevant question answered "yes", because that is what effectively the Tribunal appears to be saying.

True it is that there were problems after, but that was when the difficulty had already been created and the discrimination had already occurred and the decision which was made initially was tainted in my judgment by that discrimination.

I appreciate that this relatively new legislation is not easy for schools to apply. It is unfortunate when there exists, as there clearly does in this case, a degree of lack of trust between a parent and the school. That tends to lead to problems which may not always result in what is best for the child. But, unfortunately, where a true claim for discrimination has arisen, that fuels the flames of any concerns such as existed in this case.

I hope that this litigation will not in the long run disadvantage D and her future because that is always what one is concerned about in cases involving children and school. The reality is, as I have said, that in my judgment there could be no finding other than that there was unlawful discrimination in the way that this school went about dealing with the placement in respect of D and in those circumstances, I must allow this appeal and remit the matter to be reconsidered in the light of this judgment.

I think that is the only thing I can do, is it?

MR LLOYD: My Lord, you can make a declaration. You do not have to remit.

MR JUSTICE COLLINS: In that case, I will make the declaration and simply declare that this was unlawful discrimination for the reasons I have given in the judgment.

Quite where that will get you, I am not sure.

MR LLOYD: I think, my Lord, in exercising a supervisory jurisdiction, it should give the Tribunal a good steer.

MR JUSTICE COLLINS: One can only hope.

MR LLOYD: I am grateful.

MR JUSTICE COLLINS: You ask for costs, I take it?

MR LLOYD: I do, my Lord.

MR JUSTICE COLLINS: I do not think you can resist that, can you?

MISS BAILEY: Not really, no, my Lord.

MR JUSTICE COLLINS: I do not think so.

MR LLOYD: May I just say D is publicly funded.

MR JUSTICE COLLINS: Yes. You can have the usual order.