Best endeavours –v- reasonable adjustments: what challenges does the “presumption for mainstream” pose for FE colleges?

We’re currently grappling with a couple of particularly tricky disability discrimination claims against FE college clients. They raise questions that are not unusual in this field, particularly around the duty to make reasonable adjustments, such as:

 

 

 

  • what type of evidence is needed to confirm a learner’s disability and the adjustments reasonably required to be made;    
  • when does an adjustment become so costly and difficult to implement that it is not reasonable; and
  • the extent to which the rights and interests of other learners should dictate whether or not an adjustment can be accommodated.

Underpinning the legal complexities are often powerful personal and institutional tensions and dynamics. The learners and their parents are convinced that the duty is to make whatever adjustments the learner requires and that no further consideration of reasonableness is desirable or permitted. The colleges in question are equally convinced that “reasonable” equates to straightforward, convenient and cheap, and are unwilling to contemplate anything that departs significantly from how they have always done things. The legal answer lies somewhere in the middle, but just like Dr Seuss’s Zaks, neither side is willing to budge.

It is somewhat dispiriting that nearly ten years after the Disability Discrimination Act first applied to colleges these questions still remain such fertile ground for dispute. The position is unfortunately not likely to resolve anytime soon. From September this year, the Children and Families Act 2014 (the Act) will impose new and additional duties on FE colleges in relation to learners with special educational needs (SEN) which will sit alongside the Equality Act duties not to discriminate and to make reasonable adjustments. These include:

  • A duty to admit any learner whose Education, Health and Care Needs (EHC) plan names the college as the desired destination. Notably, the local authority must comply with any such learner request unless one of two criteria is met. The first is that the college specified is considered unsuitable, having regard to the age, ability, aptitude or SEN of the learner. The second is that the attendance of the learner is incompatible with the provision of efficient education for others or the efficient use of resources.  A local authority will need to consult with the college it is intending to name, but once the college is named, the duty to admit is absolute.
  • A duty to ensure that the college uses best endeavours to secure that the special educational provision called for by a learner’s SEN is made. “Using best endeavours” is defined in the draft Code of Practice that will accompany the Act as meaning that within the resources available to it, the college must do its best to meet the learner’s SEN. Perhaps not the most illuminating of definitions, and one that leaves open the possibility that the college’s duty under the Act is higher than that imposed under the Equality Act.

It is clear that many of the same considerations that are currently hotly debated in terms of whether a particular adjustment is
reasonable will apply in deciding both whether a particular college should be named in an EHC plan and whether the college has satisfied the duty to use best endeavours to meet those needs: the allocation of resources, the interests of others, the extent of the adjustments required, for example. The involvement of the local authority will add another dynamic to an already often fraught dialogue with the learner and his or her parents. Given the duty to “mainstream” wherever possible, local authorities may be every bit as assiduous in pushing colleges to accommodate learners with SEN, if not more so.   Colleges may thus be asked to consider a greater number and type of adjustments to their educational provision, and will need to be able to articulate very clearly and compellingly why they cannot accommodate any particular learner’s needs. If the cases we’re currently looking at are anything to go by, some will find this a real challenge.

Smita Jamdar
Partner and Head of Education
For and on behalf of SGH Martineau LLP
DD: 0800 763 1332
M:  07909 925946
F: 0800 763 1732
International DD: +44 870 763 1332
E: smita.jamdar@sghmartineau.com
W: www.sghmartineau.com

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