South West London Family Says Disabled Pupils Unfairly Disadvantaged By Use Of PCR Swab Testing Instead Of Less Intrusive Measures

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.

Angela Jackman QC (Hon) from specialist public law and human rights lawyers Irwin Mitchell has written to the Secretary of State for Health and Social Care, Sajid Javid, and the Secretary of State for Education, Nadhim Zahawi, requesting that the guidance should be urgently revised to enable pupils with disabilities to take less intrusive saliva tests.

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.

If the Government does not change its guidance on COVID-19 PCR testing for school pupils, or fails to respond to the letter, it could face a Judicial Review in the High Court.

The family say the current testing practices unfairly disadvantage disabled pupils. They wish to remain anonymous to protect the identity of the young person. The pupil is unable to take the COVID-19 PCR swab test due to their complex disabilities. .

Many pupils with severe disabilities are also unable to adequately complete the PCR testing required, the family’s legal team say.

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.

Expert Opinion

“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.”
Angela Jackman KC (Hon) - Partner

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