[2024] UKUT 139 (AAC)

D has had an EHCP since December 2015. When the EHCP was first issued, the local authority had named a special school for D’s provision, but after an appeal to the First-tier Tribunal, D was placed in a mainstream school, one year behind her chronological age. D attended a nursery and another mainstream primary school before transferring in November 2020 to the mainstream community primary school that is the respondent to these proceedings.

D’s EHCP records her ASD diagnosis and, in Section B, describes how this “impacts on her speech and language, her social communication and interaction, her play and her ability to share focus and take adult direction”. It states that she “presents with a language disorder … has very disordered expressive language which impacts upon her ability to communicate significantly” and that her “receptive and expressive language skills continue to be significantly behind that of her age matched peers”.

As relevant to this appeal, Section F of the EHCP stipulates that D will receive “a minimum of 32.5 hours per week of level 3 Teaching Assistant support solely assigned to [D], who has experience and/or training in young children with autism and language difficulties”. It further states:

Curriculum differentiation to be made explicit to reflect how it has been differentiated in terms of pace, content and delivery. …

[D] requires a differentiated curriculum (in terms of pace, content and delivery) which emphasizes opportunities for learning through practical, visual and play based activities supported by an individualised timetable, identifying the differentiated teaching and learning activities she needs.

Different learning materials as required by her action plan. …

Ensure that [D] spends time completing activities on her own and doesn’t only complete things when she has the support of an adult as she may become over reliant. Initially, this may need to be easier tasks that aren’t overly challenging for her and are achievable independently. Really celebrate the fact that she has completed these things with independence. The challenge can increase as her confidence increases with completing things independently. [D’s] Level 3 Teaching Assistant, may feel it appropriate to leave her for very brief periods of time (e.g. 1 minute) before checking in with her again.

This time period can be extended as she gains confidence. …

[D’s] literacy programme should include alternative methods of recording so that the demonstration of her learning is not reliant on written work which is heavily scaffolded. For recording work, staff should consider alternative means of recording (a scribe, paired/collaborative work, voice recorder, talking tins/postcards video, laptop, illustrated diagrams/charts). Frameworks should be provided for writing, with headings, sentence beginnings etc.

D’s parents became concerned about the progress that D was making at school and about certain aspects of her educational provision and commenced this claim to the First-tier Tribunal under the EA 2010 on 12 September 2022. The claim was registered on 4 October 2022. The appellants acted ‘in person’ in commencing the claim and were not legally represented until they instructed Mr Broach KC on a direct access basis to represent them at the final hearing.

At a Telephone Case Management Hearing on 30 November 2022, Judge Ozen identified the grounds of claim in outline, including the third ground with which this appeal is concerned. The third ground was recorded as being an “allegation that the school failed to differentiate [D’s] curriculum”. The statutory cause of action under the EA 2010 was not identified. The appellants indicated that they were unclear what further details were required and the Tribunal explained in general terms, ordering them to identify: (i) the specific failure or unfavourable treatment being alleged; (ii) the date or date range when the failure/treatment arose; (iii) how the claimants say that failure arises from D’s claimed disability; and (iv) the disadvantage that D has suffered as a result.

The appellants responded to that order by producing an 8-page document setting out further details of their allegation. This took the form of identifying four specific incidents where they alleged that the school had failed appropriately to differentiate the curriculum for D. In very short summary, those incidents were as follows. Each incident was based on what had been included in a report by D’s Specialist Teacher:-

In their further particulars the appellants complained, “[D] has been deprived of appropriate learning opportunities using appropriate differentiating as outlined in section F of ECHP, which was recommended by three different independent EP [and included in the EHCP following the 2020 First-tier Tribunal decision …].[D] was not given access to an appropriately differentiated curriculum, and hence [D] has been in a disadvantaged position in her learning and progress. [D] has been made to write pages and pages of work without any understanding or learning”. Further examples followed and the point that the school was failing to differentiate for D in the way stipulated in Section F of the EHCP was made strongly.

There was then a further Telephone Case Management Hearing on 24 January 2023. It appears from the record of that Hearing that the appellants’ further particulars had got ‘lost in the system’ and were only retrieved during the course of the hearing. No doubt it was as a result of this that the opportunity was not taken at that hearing, as would have been desirable, for the Judge to identify the legal nature of the claim that was being made. The claim was again classified merely as ‘discrimination in how the school is delivering the curriculum’, rather than by reference to any particular statutory cause of action under the EA 2010 and whether the claim constituted, for example, a claim of failure to make reasonable adjustments under ss 20 and 21 or a claim of unfavourable treatment arising in consequence of disability under s 15.

The RB was directed to respond to the appellants’ further particulars and did so in a document dated 7 February 2023. It responded to the first incident as if it was a claim of failure to make reasonable adjustments, but made no attempt to categorise the second, third and fourth incidents. It provided dates for the undated incidents and asserted that each of the incidents had occurred more than six months before it was raised with the Tribunal and was therefore out of time.

The parties have also emphasised, as relevant to this appeal, the following paragraphs of the RB’s response:

13.

Nonetheless, the Responsible Body refute that [D] was disadvantaged by not having access to a model of teeth. Whilst it is not detailed in the observation report, the Responsible Body has established that during the lesson the class teacher presented from an interactive whiteboard and [D] has her own personal copy of the teaching resource on her desk in a paper-based format.

14.

[D] was supported by her teaching assistant during the lesson, who acted as a scribe, writing down [D]’s ideas and adding labels.

15.

It is apparent from the details of the observation that [D] was engaged with all other parts of the lesson and completed the tasks successfully.

16.

The Claimants have not adequately evidenced that the lack of a model of teeth put [D] at a disadvantage and that this is directly linked to her disability. …

19.

Whilst [D] follows the National Curriculum, it is suitably differentiated, and professional advice is followed in the implementation of this as well as, critically, [D]’s Education, Health and Care Plan. …

28.

The pieces of writing are examples of shared composition, where [D]’s Teaching Assistant works with [D] to take her initial ideas and then [D] rehearses, writes and edits the written responses. This technique is used with [D] and is based upon the recommendations by [D]’s Speech and Language Therapist.

29.

The Responsible Body notes that in Tonia Robinson’s report of August 2022, [D]’s teaching assistant informed Ms Robinson that they use pictures and spider grams to generate ideas, and Colourful Semantic to help structure sentences. There is reference in the report that [D] does require a high level of guiding and scaffolding, as indeed would be expected for any child with [D]’s profile of special educational needs. Many techniques are used with [D] to support her writing.

30.

The Responsible Body submits that the pieces of writing put forward by the Claimants are not examples of [D] writing independently of an adult but examples of [D] being heavily supported and the writing being scaffolded over a number of lessons.

31.

The Responsible Body does also not agree that three examples of good written work by [D] amount to evidence of discrimination and that [D] was put at a disadvantage. By using a scaffolding technique when completing these pieces of work, the Responsible Body are adhering to professional recommendations and [D]’s Education, Health and Care Plan and adjusting to [D]’s needs as they present on daily basis.

32.

Describing [D] as a ‘slave’ in such situation is not helpful, useful or accurate. [D] is having the Key Stage 2 curriculum differentiated heavily for her to enable her to be able to access the work being done within a mainstream environment. These very few examples of completed work are highly selective because they do not show the very high level of support and differing techniques being utilised to develop [D]’s skill levels and are simply illustrative of the end result of one particular set of techniques in particular circumstances.

The appellants then prepared a reply to the RB’s response in which they clarified that their claim “is about ongoing lack of differentiated curriculum for [D] which is ongoing on day to day basis (from October 2020)” and not limited to the example incidents they had referred to in their further particulars, which they pointed out they did not have dates for until the RB provided its response. They also replied to a number of the factual points that the RB had made. One of the points that they repeated a number of times in the document, was that the school was overly reliant on “dictating and scribing” and that there was (they submitted) nothing in the EHCP about “dictating and scribing” being appropriate educational provision for D.

The matter then came on for final hearing on 17 April 2023. As is customary in the First-tier Tribunal in such cases, the hearing took place by video before a Tribunal Judge and a Specialist Member. The Tribunal had before it documentary evidence, the key items of which so far as relevant to this appeal included:

At the hearing itself, the only witnesses who attended were the Headteacher and the appellants. The RB applied (late) for Ms Underwood to appear as a witness, but the Tribunal refused that application in part on the basis that as Ms Robinson had not attended it would not be fair to hear oral evidence from Ms Underwood.