D, R (on the application of) v Plymouth High School for Girls

Under the Disability Discrimination Act 1995, a school must take reasonable, proactive steps to ensure that a disabled pupil is not placed at a substantial disadvantage in education or associated services. The proper comparator is a non-disabled pupil. A school cannot rely on a failure to disclose medical information where it knew of the disability and failed to explain the need for disclosure or obtain and pass on sufficient information. Decisions about a disabled pupil’s suitability for a placement should be made after consulting the pupil and obtaining adequate information about her capabilities. Treatment cannot be justified merely because a form was incomplete when the school was responsible for the resulting lack of information.

D appealed from a decision of the Special Educational Needs and Disability Tribunal rejecting her complaint that the governing body of her school had unlawfully discriminated against her in arranging a year 10 work placement. D had a visual impairment and had selected media work, her former primary school, and work with animals. The school and its placement providers rejected or failed to allocate those choices, relying in part on the absence of medical information on the placement form. The central issue was whether the treatment was discrimination related to disability, and whether it was justified under sections 28A to 28I of the Disability Discrimination Act 1995.

1. Appeal allowed. The Tribunal’s reasoning that the ultimate failure to allocate a placement resulted from non-disclosure, rather than disability, and was justified by the incomplete form could not stand.
2. Section 28C required the school to take such reasonable steps as were necessary to ensure that D was not placed at a substantial disadvantage compared with pupils who were not disabled. The comparator was therefore a non-disabled pupil.
3. The school knew that D was visually impaired, that work placement was a required part of year 10, and that the disability was relevant to placement suitability and employer safety. It should have obtained adequate information from D, her mother and an appropriate specialist; discussed with D what she could do; explained the need for disclosure; and passed relevant information to the placement provider.
4. The school’s failure to take those steps caused the information deficit on which the placement decisions were based. Decisions concerning the media placement and pet shop were made without sufficient knowledge of D’s capabilities and without consulting her. The failure to complete the medical declaration could not, in those circumstances, justify the treatment.
5. Later attempts to obtain disclosure or offer alternative placements did not cure the discrimination already occasioned by the initial decision.

The court declared that the treatment constituted unlawful discrimination and made the usual order as to costs.

• Special Educational Needs and Disability Tribunal: rejected D’s complaint of unlawful disability discrimination.
• High Court (Administrative Court): allowed the appeal, declared that the treatment was unlawful discrimination, and made the usual order as to costs.