Failure to deliver statemented provision can be disability discrimination

Buniak -v- The Jenny Hammond Primary School

It might now be possible to bring discrimination complaints in respect of non-provision in statements, if it can be shown that the reason why provision is not being made is discriminatory.

An important case was brought by Lee Buniak's mother against his last school, the Jenny Hammond Primary School. David Ruebain, head of Levenes Solicitors' specialist department in Education and Disability Law, brought the case for Ms Buniak, and was funded by the Disability Rights Commission to do so.

Lee is a child with global developmental delay who was subject to serious discrimination because of his disability. He was prevented from being involved in the school Christmas play and other activities, including making a card for his mother, he was excluded from a school trip and was even not invited to be in the class photo. In an appeal brought to the Special Educational Needs and Disability Tribunal, the Tribunal found that the school had acted unlawfully in discriminating against Lee in all of these ways.

However, the Tribunal also decided a point in favour of Ms Buniak which was not clearly reflected in the Press coverage but which has important consequences for other disabled children. They held that a failure by the school to secure adequate staffing arrangements for Lee, when his statement of special educational needs required that he receive support from a learning support assistant, was also discrimination, even though it was provision contained within his statement.

Since the Special Educational Needs and Disability Act 2001 amended the Disability Discrimination Act 1995 to bring education within the Anti-Discrimination provisions of the DDA, practitioners have generally thought that the discrimination arrangements would exclude provision which would ordinarily be secured through a statement of special educational needs. However, in this case, the Tribunal held that where a statement provides for support, if that support is not being delivered, it might fall within the anti-discrimination arrangements (if it meets the definition of discrimination). Accordingly, it might now be possible to bring discrimination complaints in respect of non-provision in statements, if it can be shown that the reason why provision is not being made is discriminatory.

© David Ruebain

Education Solicitor