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Government faces legal challenge from pupil with SEN over “unfair” use of PCR testing in schools

The parents of a 15-year-old pupil with special educational needs and disabilities have instructed lawyers to challenge the lawfulness of government guidance to schools on Covid-19 testing, arguing that it should be urgently revised to enable pupils with disabilities to take less intrusive saliva tests.

Advised by Irwin Mitchell partner Angela Jackman QC Hon, the family from South West London argue that the claimant is unfairly disadvantaged by use of PCR swab testing.

A pre-action letter has been sent to the Secretary of State for Health and Social Care, Sajid Javid, and the Secretary of State for Education, Nadhim Zahawi.

Irwin Mitchell said it is being argued that as government guidance currently permits saliva tests for other purposes, it is unreasonable and discriminatory to not permit them for pupils with disabilities. The claimant is unable to take the Covid-19 PCR swab test due to their complex disabilities.

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The letter has threatened a judicial review challenge, should the Government not change its guidance on Covid-19 PCR testing for school pupils, or fail to respond.

Irwin Mitchell said that, under current government guidance, schools are required to request PCR tests from pupils who show any of the three symptoms of Covid-19. “If pupils are unable to provide a negative test result, they are required to self-isolate at home for 10 days, with the result that they miss face-to-face schooling during that period of time. No exceptions are made for pupils who are unable to take a PCR test due to their special needs and / or disabilities.”

Angela Jackman QC said: “This is an important issue because of the negative impact on potentially thousands of disabled pupils forced to miss vital schooling when they may not be infectious.

“It also has broader impact for individuals in other contexts who are unable to take a PCR test due their disabilities with consequent impact upon their civil liberties if they are forced to self-isolate when they do not pose any covid risk.

“There are alternative Covid-19 tests which include saliva PCR tests or enhanced lateral flow tests which are much less intrusive and stressful for people such as our client. These tests are considered acceptable in other settings. We’re asking the Government to amend the guidance for schools to help disabled pupils through the testing process.”

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