Specifically, the standards are designed to lead to improved outcomes for children and young people (CYP) with SEN and disabilities. They contribute directly to the achievement of the five Every Child Matters (ECM) outcomes for CYP.

There was seemingly a rather tepid reception from the teaching unions and – given the animosity towards some exclusion panels – it will be interesting to see what headteachers make of the proposal.   The idea is to engender more engagement from parents in their childrens’ education – though I would question whether setting up an adversarial process would actually achieve that end.

Update: consultation on the proposals out now

This case involved the decision by the Council to cease to maintain a Statement of Special Educational Needs.  There were two specific issues.  The first concerned the decision of the Council not to exercise its discretion under section 2 Local Government Act 2000 to fund a placement in a College of Further Education.  The Claimant was 18 years old.  The local authority refused to exercise its discretion to make provision for funding under section 2 given that the normal route for funding was under the Learning and Skills Council.  In the High Court there was some dispute as to whether the parents had properly applied for Learning Skills funding but the Court of Appeal resolved that in the local authority’s favour.  It is clear that section 2 was broad enough to allow for the local authority to fund post 16 education but in this case the authority had exercised its discretion to refuse that request.

The more significant aspect of the case is the process dealing with ceasing to maintain statements.  Under paragraph 9(1) of Schedule 27 to the 1996 Act a local authority can only cease to maintain a statement if it is no longer necessary to maintain it.  Where the local authority makes such a determination they should give notice in writing of that fact to the parent of the child outlining the parents’ right of appeal.  There is an alternative method proposed by paragraph 9(2) which provided that where the local authority ceased to maintain a statement for a child for whom it had ceased to be responsible then it need not serve the notice setting out the right of appeal etc.  This is often referred to as the statement lapsing. 

The Court of Appeal held that this latter method of ceasing to maintain was intended to apply to the normal case where the statement ceased to have any point because the child had left school and there was no possibility of the local authority providing the special educational needs up to the age of 18 or 19.  The local authority still had to go through the process of determining whether or not to cease to maintain a statement but in certain cases it was not bound to give notice of that determination.  In circumstances where a child of 16 had ceased to be registered at a school but there was every reason for a continuing belief that the child might need, and be given, special educational provision later then the method of cessation should involve the giving of a notice.

The law on disability discrimination had gone awry with the decision of Clark v Novacold Ltd (1999) which held that when looking at the treatment afforded to a disabled person it was appropriate to make a comparison with the treatment of someone who did not have that disability, if the reason for the treatment related to the disability.

That, said the the House of Lords, was the wrong approach.  Indeed, in applying that approach to this case – which involved the eviction of a disabled tenant who sub-let their property in breach of their tenancy agreement – would lead to an absurdity.  A tenant who did not sub-let (being the Novacold-type comparator) would never be the subject of enforcement action from the housing authority.

The correct approach – set out succinctly by Lord Bingham  – was to ask: was the reason for the treatment a reason related to Mr Malcolm’s disability?  In this case, no.  The reason was a housing management decision unrelated to the disability.  (My own view is that paragraph 10 and 11 of the judgment is difficult to understand.  Bingham accepts that but for his disability he would not have sub-let, but still finds the reason unrelated – calling it a housing management decision.  Lord Scott goes further and suggests that the disability must have ‘played some motivating part in the mind’ of those responsible the treatement. )  The comparator was not, as per Novacold, with tenants who did not sub-let, but rather to those, without a disability, who did sub-let.

The implications of this case in the school arena remain to be seen.  A common complaint of disability discrimination arises in exclusions.  It could be argued that a disabled child (whose disability manifests itself in behavioural problems; ADHD, autism, for example) who is excluded because of misbehaviour should be compared to a non-disabled child who misbehaves.  If exclusion was an appropriate sanction for the latter, then it would not be less favourable treatment of the former – the decision to exclude being simply an enforcement of the behaviour policy of the school.  If, however, the sole reason for the exclusion was because of the disability, arguably that is unlawful discrimination.

For the future the focus of the discrimination claims will be the obligation to make reasonable adjustments.  It may be that there is no less favourable treatment of a child who misbehaves because of their disability, but there will still be a duty to ensure reasonable steps are taken to ensure that the disabled child is not placed at a substantial disadvantage.  Those steps could be many and various.

Whilst the Education and Inspections Act 2006 is the enabling legislation, the detail is found in two sets of regulations, unhappily called The Education(Provision of Full-Time Education for Excluded Pupils)(England) Regulations 2007 and The Education (Reintegration Interview)(England) Regulations 2007.

It will be interesting to see if any assessment is undertaken of the how much take up there is of these powers.  Powers enacted to enable local authorities to seek parenting orders for excluded children have have been very under-utilised.

Not so, said Michael Supperstone QC. Whilst the ring could, for Ms Playfoot, symbolise her religious commitments it was not essential to the expression of the Christian faith, it was a piece of jewelry and as such banned under the school’s uniform policy – a policy which she had voluntarily chosen to submit to by attending the school. It followed that there had been no breach of her human rights.