[2024] UKUT 139 (AAC)

The First-tier Tribunal identified the issue on the third claim with which this appeal is concerned to be (at paragraph 7) “From September 2021, the school did not differentiate [D’s] curriculum at school and so failed to make reasonable adjustments for her”.

At paragraphs 8-10 it directed itself by reference to the relevant statutory provisions of the EA 2010 and stated (at paragraph 8): “We remind ourselves that any failure to make the special educational provision in [D’s] EHCP does not, of itself, constitute discrimination and that we are not considering whether the RB made best endeavours to make [D’s] special educational provision under section 66 of the Children and Families Act 2014.”

At paragraph 13 it noted that there was no dispute that D was disabled “as she has significant learning difficulties associated with her diagnosis of ASD, including in respect of speech and language, communication, anxiety, sensory sensitivities and avoidant behaviours”.

It is worth setting out the whole of the section of the decision dealing with this third claim:

Non-differentiation of the curriculum

24.

The third element of the Claim relates to the allegation that the school failed to

differentiate its approach to teaching [D]. This is best considered as a failure

to make reasonable adjustments and the Claimants have identified, as the

practice that puts [D] at a substantial disadvantage, one whereby pupils

engage in their learning by oral instruction and independent written exercise. The

Claimants say that the school’s failure to make adjustments to this practice put

[D] at a substantial disadvantage in her learning, as she failed to make the

level of progress that she should have.

Parties’ positions

25.

The Claimants refer (among other things) to the evidence of Ms Tonia Robinson

(EP) and Ms Catia Pedrosa (Specialist Autistic Teacher) to support this element

of the Claim. That evidence is to the effect that through observing lessons,

working with staff who knew [D] and considering pieces of [D]’s written

work, they are of the view that the school did not appropriately differentiate

[D]’s provision. They say, in summary, that:

a.

On at least some occasions [D] was a passive participant in her

lessons because her teaching did not follow a multi-sensory approach and

they refer to a particular lesson observed by Ms Robinson relating to teeth;

b.

[D] was too reliant on support from her teaching assistant and did not

work with sufficient independence.

c.

It appears that [D]’s written work was either copied or dictated to her

by staff, because it contains language that she would not understand or

use (these pieces of work were analysed in depth in the hearing).

26.

The Claimants say that on the basis of the advice given by these professionals,

the school could and should have made simple adjustments to the way that it

supported [D]. The school should, for example, have used more visual aids

to help [D] or could have got her to write short, simple text. The Claimants

say that this failure meant that [D] was put at a substantial disadvantage

because her learning, in particular her literacy, was not progressing, she was not

learning to work independently and she was distressed in some lessons,

expressed through making whining noises.

27.

[The Headteacher]’s response, in summary, was that the school had pursued a quality

first teaching approach which included a variety of ways of supporting [D],

including a multi-sensory approach (e.g. a lesson about teeth that involved

looking at and touching teeth as well as listening to the teacher and preparing

written work). The school followed the colourful semantics approach to

developing [D]’s literacy skills as recommended by the Speech and

Language Therapist, which involved a good deal of support and scaffolding. He

pointed to a number of steps that the school had taken to support [D],

including putting into practice professional recommendations (e.g. using the

software recommended by Ms Pedrosa and her colleagues), making an

appropriate environment available for her sensor needs, providing a good deal

of adult support. According to [the Headteacher], [D] was happy at school and was

making progress, especially with her social skills and numeracy. He stressed that

the school never dictated work to [D] or got her to copy text, but worked with

her on projects over a matter of days following the colourful semantics approach.

[The Headteacher] did not accept that [D] making whining noises was an indication of

distress, but was rather a part of her self-regulating. He said that [D]’s

progress with literacy was slower as that is an area that [D] struggles with.

[The Headteacher] acknowledged that there had been problems with record keeping and

tracking [D]’s progress, but said that this had now been rectified and [D]’s

progress was now being properly recorded.

Analysis

28.

The school did not dispute that it had a practice of pupils engaging in their

learning through oral instruction and independent written exercises and that this

practice, without adjustment, put [D] at a substantial disadvantage. Indeed,

the school’s position is that it did make reasonable adjustments for [D] and

that those adjustments were largely successful in supporting. The primary issue,

therefore, for us to consider is whether the school had taken such steps as it was

reasonable for it to have to take to avoid the disadvantage to [D].

29.

Mr Broach, on behalf of the Claimants, suggests (in summary) that because the

school did not put into effect the recommendations made by certain professionals

(including Ms Pedrosa and Ms Robinson), it failed to take the reasonable steps

that it ought to have done. As a result, [D] still suffered a disadvantage in her

learning, because she was distressed in lessons, her literacy skills are still behind

where they should be and she is unable to work with a sufficient degree of

independence (e.g. [D] cannot spontaneously write a sentence).

30.

In a matter as complex and as individual as [D]’s special educational needs

and provision, we do not think that things are as straightforward as Mr Broach

suggests. Although the Children and Families Act 2014 (CFA) is a separate piece

of legislation, we nevertheless consider it to be a relevant reference point when

considering this matter for the following reasons:

a.

There is a comprehensive framework for identifying a child’s special

educational needs and specifying the special educational provision that is

reasonably required. That framework involves ongoing assessment and

reviews, drawing on the relevant advice of a range of professionals,

including school staff, specialist teachers and Educational Psychologists.

b.

A child or young person is entitled to the special educational provision that

they reasonably require. There is no duty on a school or a Local Authority

to provide the best possible special educational provision.

c.

There is no strict obligation on schools to achieve certain outcomes. The

duty is to use best endeavours to secure the special educational provision

called for by a child’s special educational needs is made (section 61).

31.

In light of this and, in any case, drawing on our experience and expertise as a

specialist panel, it is clear to us that identifying a young person’s needs and

making the provision that they require to meet those needs is in many cases a

complex and delicate matter that depends on professional judgment. It requires

time and learning from experience of what works and what does not. In making

these decisions, a school is not obliged to rush to judgement or, indeed, to give

effect to the particular preferences of parents or the advice of individual

professionals. A school is entitled to take time and to exercise discretion and

professional judgment as to the steps that it takes and the adjustments that it makes for pupils. In doing so, the school is entitled to balance its decisions and

approach against other, competing demands on school staff and resources. The

simple fact that a parent or other professional may take a different view from the

school or may be dissatisfied with the nature or timing of the decisions that it

makes does not, of itself, mean that the school has failed to make reasonable

adjustments or discriminated against the child in any other way.

32.

Furthermore, we note that neither CFA nor the Equality Act 2010 impose any

strict liability type duty on a school to achieve a particular goal or objective. There

is no duty under either legislation, for example, to ensure that [D] achieves a

particular level in her literacy skills. Under section 61 CFA the school must use

best endeavours to make her special educational provision. Under section 20

EqA, the school must take reasonable steps to avoid the disadvantage that would

otherwise arise under its general practice. In our view, [D]’s education and

the progress that she makes is not something that can be measured simply by

ascertaining her understanding of particular texts, for example. Determining

whether a disadvantage has been (or would have been) removed will necessarily

involve a degree of speculation. Different people may have different views about

whether some approaches work better than others or would lead to better

outcomes (however those outcomes are measured). But that will often involve

trying to compare approach A with a hypothetical approach B. And in this context,

it is important to see [D]’s educational objectives in a holistic way. Whilst a

child’s special educational needs may lead to a focus on particular types of

provision to achieve particular objectives (e.g. literacy), in most cases there is a

range of needs and it is a question for families, professionals and schools to

balance those needs and to make progress across them. That is certainly so in

[D]’s case.

33.

In this context, we are cautious about the application of the disability

discrimination provisions in the context of the school’s approach to making

[D]’s special educational provision. In particular, we are cautious about

finding that there has been disability discrimination simply because there is

disagreement between professionals as to the effectiveness of the special

educational provision that is made.

Findings and conclusions

34.

In light of all of this, we note and accept the steps that the school has taken to

support [D] (as summarised above). We acknowledge that [D] has made

little or no progress in literacy, but are satisfied (given what [The Headteacher] told us,

which was not disputed) that numeracy was an area of relative strength and that

[D] was generally happy in school, with good relationships with peers and

others.

35.

To the extent that we are required to make findings about the way in which the

school supported [D] with her literacy, we accept [the Headteacher]’s explanation

that there was no dictation or copying, as the Claimants allege, and that [D]’s

written work was her own, produced over several days in accordance with the

colourful semantics approach (as recommended by the Speech and Language

Therapist) that the school followed and with a good degree of scaffolding and

support. We find this because [the Headteacher] as headteacher has responsibility for

this provision and is well placed to tell us about it. We were satisfied that he had

a good understanding of [D] and the provision made for her. Ms Pedrosa’s

evidence on this was rather speculative (she did not see any dictation or copying

and relied on what she was told by a Teaching Assistant and her own judgment

as to the type of work that [D] would be able to do). Ms Robinson’s

observations of [D] in school were limited. In any case, we do not find that

much turns on this. There may well be questions about the effectiveness of this

approach for [D] given that she did not appear to understand much of the

text that she had written, but that does not of itself mean that the exercise had

no value or that the school discriminated against her in following it. Given the

context referred to above, the school was entitled to try this approach. If, on

reflection and based on evidence, that approach did not work well for [D] or

required adjustments in some way, then something different could be tried.

36.

Ms Underwood provided professional advice in November 2022 as part of the

process of reviewing [D]’s EHCP. That report gives an overview of [D]’s

progress up to that point and makes recommendations for changes to her EHCP,

for example, by the provision of overlearning. Her observations are different from

those of other professional witnesses and generally more positive about the

progress that [D] was making. That advice, along with the advice of other

professionals (including Ms Pedrosa and Ms Robinson), would ordinarily be

factored into the review of [D]’s EHCP, which could lead to additional or

different support for [D], drawing on what has worked well and what further

steps are needed.

37.

In considering the steps that the school has taken to support [D] we do not

hold it to a standard of perfection. Mistakes have been made, such as the lack of

data to track [D]’s progress. However, when considered within the context of

a busy, mainstream school supporting a range of children with a range of needs

and abilities, we are satisfied that the school has acted reasonably to support

[D]: it provided additional support for her; it adopted some of the suggestions

made by professionals (such as use of software); it adapted her curriculum with

different lesson plans and implemented the colourful semantics approach; it

engaged in her EHCP review. We are satisfied that it made reasonable

adjustments for [D] and so conclude that it did not discriminate against her

under section 20 EqA. We dismiss this element of the Claim.