11KBW’s Peter and Zoe acted for Leicestershire County Council in R (KD) v Leics CC, in which judgment was given on 19th July 2019. The claimant is a severely disabled person aged 17. The Council currently provides disabled young persons between the ages of 16-18 with free home to school transport. Due to financial constraints, the Council changed its transport policy for disabled people aged between 16-18 so that families will receive a personal transport budget with which to arrange transport themselves, save in exceptional cases where transport would still be provided.
The claimant contended that the change amounted to both disability and age discrimination under the EHCR. The age discrimination claim was based on the fact that students below the age of 16, and (in appropriate cases) young people above the age of 18, receive free transport. Swift J decided that the difference in treatment was justified by reason that the Education Acts provided that free transport has to be provided in such cases, whereas they do not for the 16-18 year group.
The disability discrimination claim was that the Thlimmenos approach required that the claimant be put in the same position as 16-18 year olds who are not disabled, and who do not have difficulties in getting to school, so that the Council should continue to provide transport for her. The judge decided that the claimant was arguing for positive discrimination of a nature failing outside the Thlimmenos principle.
The judgment can be accessed here.