Pupil with visual impairment fails in challenge to arrangements for provision of teaching assistants

A London borough has successfully defended a High Court challenge over its arrangements when it is necessary to provide specialist teaching assistants for pupils in mainstream schools who need a high level of special needs support.

The claimant in ZK, R (On the Application Of) v London Borough of Redbridge [2019] EWHC 1450 is such a pupil. ZK is 12 years old and – as a result of a brain tumour – totally blind and partially deaf. She attends a mainstream school, having transferred from a primary school at the beginning of the 2018/19 academic year.

The claimant has been the subject of an Education, Health and Care Plan since 2017. The support identified in the EHCP is to be provided at the secondary school she attends in Redbridge.

The challenge in the proceedings was not directed to the specific provision made for the claimant; it was not a challenge about the requirements arising from her EHCP.

Instead, it concerned the arrangements made by Redbridge for the provision of specialist teaching assistants for pupils in mainstream schools who need a high level of special needs support.

Pupils with visual impairment (VI) typically need support from specialist teaching assistants, who are in turn, supported by QTVI teachers (teachers qualified to teach children and young people with visual impairment).

Under the arrangements Redbridge has in place, the council does not itself either employ the QTVI teachers, or employ or train the teaching assistants who work with VI pupils in mainstream schools.

The teaching assistants are employed by the schools in which they work; Redbridge contracts with a specialist provider, the Joseph Clarke Educational Service – "JCES", to provide the services of QTVI teachers, and to train the specialist teaching assistants.

The claimant’s case was that Redbridge’s “decentralised model” had various limitations and was therefore inherently unlawful, and at odds with Redbridge's compliance with statutory obligations owed to pupils with special educational needs who are the subject of an EHCP.

The claimant said Redbridge’s arrangements contrasted with a situation where a local authority directly employs a pool of ready trained specialist teaching assistants, and also QTVI teachers, so that the teaching assistants are ready to be deployed into any mainstream school due to receive a VI pupil.

The judge, Mr Justice Swift, said that logically the claimant's contentions in the case could be applied to arrangements required to be made for any other pupil in a mainstream school with high level special needs, if those arrangements included the provision of specialist teaching assistants.

The claimant argued that there were a number of consequences as a result of Redbridge's arrangements:

• Whenever a pupil with significant visual impairment moves to a mainstream school, that school must recruit a suitable teaching assistant, and arrange for the assistant to be trained. This takes time, and it is likely that there will be a time lag between when the pupil moves to the school, and when the teaching assistant's training is complete. If the pupil arrives at the school before the teaching assistant's training is complete that will adversely affect the pupil's education. The claimant pointed out that in circumstances such as her own, when the teaching assistant needs to be trained to UEB [Unified English Braille] Grade 2 level, the training period can be significant.
• In practice a "decentralised system" reduces the choice of mainstream school available to pupils with significant visual impairment, because in the absence of readily available ready-trained teaching assistants, mainstream schools are less willing to offer places to VI pupils. The claimant pointed to her own difficulties in finding a secondary school place in a mainstream school in Redbridge.
• The lack of centralised provision and control by Redbridge brought with it the risk of further disadvantages to VI pupils. Because the specialist teaching assistants were employed by the schools, they were at risk of being redeployed by the school to other duties, for example to cover sickness absence elsewhere in the school. If that happened the VI pupil would be left without the specialist help she required to be able to access education in a mainstream school. Similarly, if the specialist teaching assistant was off sick, because there was no pool of Redbridge specialist teaching assistants, the VI pupil would be left without assistance she needed for so long as the teaching assistant was away.

The claimant therefore advanced five grounds:

1. Redbridge’s maintenance of a “decentralised model” was contrary to Wednesbury standards.
2. Redbridge's decentralised arrangements were unlawful because they entailed an unacceptable risk that Redbridge would fail to discharge the legal obligations it was subject to in respect of the provision of education to VI pupils.
3. Discrimination arguments. The premise for each of these arguments was that a decentralised model had a disproportionate adverse impact on pupils in mainstream schools with severe special educational needs such as VI pupils, because those pupils depended on specialist trained teaching assistants, and without their support could not access education in mainstream schools in the same way either as pupils with less severe special educational needs, or pupils who did not have special educational needs.
4. The council had failed to comply with its duty under section 27 of the Children and Families Act 2014 by failing to review the sufficiency of the educational provision it made for children and young people who have special educational needs.
5. By adopting and maintaining the "policy" of decentralisation, Redbridge had failed to comply with the section 149(1) of the Equality Act 2010 – i.e. the public sector equality duty.

Rejecting the claim, Mr Justice Swift said that in relation to grounds 1 and 2 he did not consider that any of the consequences asserted by the claimant were inevitable consequences of  the arrangements Redbridge had put in place.

“The likelihood that such events could occur is not such either as to render irrational the decision to make provision in this way for specialist teaching assistants, or to require an inference that the decision to do so rests on a failure to take account of all relevant matters, or to make good a conclusion that the arrangements are such that it is inevitable that Redbridge will fail to comply with the statutory obligations to which it is subject when it comes to ensuring that provision is made to meet the assessed needs of VI pupils who are in its mainstream schools,” he said.

Mr Justice Swift also dismissed the other grounds of challenge.