Jewish Parents Lose their Special Educational Needs Appeal
21/07/2004
Thank you very much for all you did for us. Our lives are so much better through your help.
Barry, DoncasterParents of a Jewish girl 'S' with special educational needs have lost their appeal to send her to an orthodox Jewish school in London.
The High Court granted the appeal in November 2003 and quashed a previous tribunal decision, when they ruled that a 'Special Educational Needs and Disability Tribunal' (SENDIST) and a 'Local Educational Authority' (LEA) must consider the significant impact of a child's religion on his or her special educational needs and, in particular, the appropriate provision or placement.
SENDIST re-heard the appeal on the 24th June 2004 and delivered their decision to the family on Monday the 19th of July.
Their rejection of the appeal was based on:
-Although SENDIST had taken into consideration the High Court Judgment of November 2003 and whilst they had noted the great progress that 'S' had made at Kisharon (the orthodox Jewish School) they rejected expert evidence from an educational psychologist given on 'S's behalf that her emotional needs required her to have an exclusively orthodox Jewish special school placement or that she would be confused if consistency was not maintained between her home and school life.
-SENDIST felt that all 'S's religious needs could be accommodated at the Northway school (a non-Jewish School) which the LEA had originally named on 'S's statement of educational needs. They felt that her 'Jewishness' could still be taken into full account and integrated within the curriculum.
-Whilst SENDIST acknowledged the importance to 'S's parents that she was placed in an orthodox Jewish School; as Northway was found to be an adequate placement there was a significant difference in cost to the LEA between Kisharon and Northway which outweighed parental preference.
Solicitor acting for the family
Head of the Education and Public Law department at Alexander Harris, Douglas Silas who acted for the family throughout all proceedings commented, "This is an extremely sad outcome for the parents who have battled for more than a year and a half to get the right placement for their daughter. Her progress at Kisharon and it being an appropriate placement was clearly recognised."
"Despite the fact that the High Court judgment in 'S's case in November 2003 has now strengthened the cases for other Jewish children in a similar position it has not been sufficient to help 'S's family whose ultimate wishes have now been thwarted."
"It illustrates the difficulties for Jewish parents with children with special educational needs in obtaining placements at Jewish special schools as these are currently all independent from an LEA who can argue that their own special schools which are maintained by them are a theoretical nil cost to them and therefore they can reject parental preference for a school on grounds of unreasonable public expenditure."
Notes to Editors:
The High Court in November 2003 placed an anonymity order on this case stating that nothing should be published that would lead to the identification of the child (S). Therefore it is not possible for editors to print the names of the parties involved and also publish any details regarding the High Court judgment.
For further information please contact our media management department at Alexander Harris solicitors on 08700 77 88 77.
Background to the Case
"A" is the mother of an 8-year-old girl, "S" who has special educational needs including cerebral palsy. S has had a Statement of Special Educational Needs prepared by her Local Education Authority (LEA), the London Borough of Barnet since she was 5 years old. S's family are orthodox practising Jews who are committed to an orthodox Jewish lifestyle including strictly observing the Jewish Sabbath and Jewish festivals and following a strict kosher diet. When she first started school the LEA placed her, with her parents' agreement, in an orthodox Jewish mainstream school together with additional learning support assistance and therapy provision. Unfortunately, this placement was not successful, as, even with extra support, S could not cope within a mainstream environment. Her parents, the mainstream school and the LEA themselves agreed at the beginning of 2003 that she should be transferred to a day special school from September 2003 which could provide her with more intensive and specialist support. The LEA consequently amended S's statement to name the Northway School, one of their own special day schools, as the correct placement for her from September 2003. As S's parents did not agree to that placement and wanted her to continue to attend a Jewish school, they appealed to the Special Educational Needs and Disability Tribunal ("SENDIST") in July 2003. Her parents requested that a Jewish special school, Kisharon School be named instead and asked that the Statement should also record the fact that S's complex learning and emotional difficulties meant that she could only have all her needs met within a Jewish school. They believed that S's educational, emotional, social, religious and cultural needs were all inextricably linked to each other and, although the LEA claimed that their school would 'respect' her religious needs as best they could, the fact was that she would be required to miss out on a lot of educational provision and access to the school generally due to her religious needs. These needs included, amongst other things: having to miss Friday afternoons for the Jewish Sabbath during much of the Winter and Spring terms; having to miss school for a number of days during the year when there were Jewish Festivals (such as Rosh Hashanah, Yom Kippur, Succot, Passover and Shavuot); not being guaranteed to be able to keep to a strict Kosher diet; and having to inevitably be withdrawn from many lessons because of the requirements of her faith. On the other hand, this would not be a problem for S at Kisharon School. S's parents added that the main criticism that had been made of her failed placement in a mainstream school was that she was 'isolated' or seen as different. This had notably had a profound effect on S's ability to access education. The LEA opposed the appeal on the ground that S's religious needs would be 'respected' at Northway School and that, despite their strong parental preference, all they had to do was to 'respect' a parent's preference. The only issue therefore for the Tribunal to consider was whether there would be an 'unreasonable use of public expenditure' in placing S at Kisharon school rather than at Northway school. Since Northway School was maintained by the LEA and they already had a vacant place there with a minibus which could transport S to and from the school, there would be a 'nil' cost to them. The Tribunal agreed with the LEA and they entirely rejected the parents' appeal for Kisharon School. However, in doing so, they concentrated in their decision only on the question of placement rather than firstly considering at S's needs and the consequential necessary provision. They also appeared to conclude that they did not need to look at the whole practical effect on S (including her potential loss of educational time and other difficulties) because they only needed to 'respect' the parents' religion or preference for a school. As the Northway School had told them that they would do this as best they could, they felt that only issue they needed to decide on was one of costs.
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