Disability discrimination in schools

Most children and young people in mainstream schools, with special educational needs will not have an EHC plan which prescribes the provision that should be made for them and which can be the subject of an appeal to the First Tier Tribunal. The obligation to make special educational provision for these children will be subject to the “best endeavours” duty noted elsewhere.

But schools are subject to another set of duties prescribed by the Equality Act 2010 not to discriminate against disabled pupils. These duties can be quite significant as they go further than minimalist duties to simply avoid discriminating against a disabled child, but actually impose duties on a school to make reasonable adjustments to facilitate the education of a disabled child. A failure by the school to meet these duties will be disability discrimination contrary to the Equality Act 2010 and a remedy can be sought in the First Tier Tribunal.

Disability under the Equality Act 2010 is described as follows. Section 6 provides:

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability—

(a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;

(b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.

(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)—

(a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and

(b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.

(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

(6) Schedule 1 (disability: supplementary provision) has effect.

Schedule 1 provides some further expansion on what “long term adverse effect” is and some of the other criteria within section 6.

In respect of children with disabilities within the ambit of the Equality Act 2010, the following duties are imposed on schools:

(1) The responsible body of a school to which this section applies must not discriminate against a person—

(a) in the arrangements it makes for deciding who is offered admission as a pupil;

(b) as to the terms on which it offers to admit the person as a pupil;

(c) by not admitting the person as a pupil.

(2) The responsible body of such a school must not discriminate against a pupil—

(a) in the way it provides education for the pupil;

(b) in the way it affords the pupil access to a benefit, facility or service;

(c) by not providing education for the pupil;

(d) by not affording the pupil access to a benefit, facility or service;

(e) by excluding the pupil from the school;

(f) by subjecting the pupil to any other detriment.

(3) The responsible body of such a school must not harass—

(a) a pupil;

(b) a person who has applied for admission as a pupil.

(4) The responsible body of such a school must not victimise a person—

(a) in the arrangements it makes for deciding who is offered admission as a pupil;

(b) as to the terms on which it offers to admit the person as a pupil;

(c) by not admitting the person as a pupil.

(5) The responsible body of such a school must not victimise a pupil—

(a) in the way it provides education for the pupil;

(b) in the way it affords the pupil access to a benefit, facility or service;

(c) by not providing education for the pupil;

(d) by not affording the pupil access to a benefit, facility or service;

(e) by excluding the pupil from the school;

(f) by subjecting the pupil to any other detriment.

(6) A duty to make reasonable adjustments applies to the responsible body of such a school.

(7) In relation to England and Wales, this section applies to—

(a) a school maintained by a local authority;

(b) an independent educational institution (other than a special school);

(ba) an alternative provision Academy that is not an independent educational institution;

(c) a special school (not maintained by a local authority).

(8) In relation to Scotland, this section applies to—

(a) a school managed by an education authority;

(b) an independent school;

(c) a school in respect of which the managers are for the time being receiving grants under section 73(c) or (d) of the Education (Scotland) Act 1980.

(9) The responsible body of a school to which this section applies is—

(a) if the school is within subsection (7)(a), the local authority or governing body;

(b) if it is within subsection (7)(b) , (ba) or (c), the proprietor;

(c) if it is within subsection (8)(a), the education authority;

(d) if it is within subsection (8)(b), the proprietor;

(e) if it is within subsection (8)(c), the managers.

(10) In the application of section 26 for the purposes of subsection (3), none of the following is a relevant protected characteristic—

(a) gender reassignment;

(b) religion or belief;

(c) sexual orientation.

Section 88 of the Equality Act 2010 provides:

Schedule 10 (accessibility) has effect.

Schedule 10 is concerned (so far as schools are concerned) with a duty to make an accessibility plan which is described in paragraph 3 of the Schedule as follows:

(1) The responsible body of a school in England and Wales must prepare—

(a) an accessibility plan;

(b) further such plans at such times as may be prescribed.

(2) An accessibility plan is a plan for, over a prescribed period—

(a) increasing the extent to which disabled pupils can participate in the school’s curriculum,

(b) improving the physical environment of the school for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and benefits, facilities or services provided or offered by the school, and

(c) improving the delivery to disabled pupils of information which is readily accessible to pupils who are not disabled.

(3) The delivery in sub-paragraph (2)(c) must be—

(a) within a reasonable time;

(b) in ways which are determined after taking account of the pupils’ disabilities and any preferences expressed by them or their parents.

(4) An accessibility plan must be in writing.

(5) The responsible body must keep its accessibility plan under review during the period to which it relates and, if necessary, revise it.

(6) The responsible body must implement its accessibility plan.

(7) A relevant inspection may extend to the performance by the responsible body of its functions in relation to the preparation, publication, review, revision and implementation of its accessibility plan.

(8) A relevant inspection is an inspection under—

(a) Part 1 of the Education Act 2005, or

(b) Chapter 1 of Part 4 of the Education and Skills Act 2008 (regulation and inspection of independent education provision in England).

The bare bones of the statute are not fleshed out by a statutory Code of Practice: the last government was not prepared to add to the “regulatory burden” of schools by doing so. Given that the same government also proposed in its Red Tape challenge the abolition of the Equality Act 2010 this is perhaps unsurprising. However the EHRC has published what it describes as Technical Guidance, which whilst note a statutory Code does have a persuasive force to it.

A copy of the Technical Guidance can be found here: Technical Guidance for Schools in England. It notes:

6.27 There is a significant overlap between those pupils who are disabled and those who have SEN.

6.28 Many disabled pupils may receive support in school through the SEN framework. In some cases, the substantial disadvantage that they experience may be overcome by support received under the SEN framework and so there will be no obligation under the Act for the school or local authority to make reasonable adjustments.

Three examples drawn from the text of the Technical Guidance usefully illustrate how the duties are meant to be applied and conversely how a school may commit the statutory tort of disability discrimination if sufficient thought is not given to what reasonable adjustments need to be made for a disabled child.

A disabled pupil has an EHC plan and attends a maintained mainstream secondary school. Through her EHC plan, she receives two hours a week of specialist teaching and uses an electronic notetaker in lessons. Because the support that she requires is provided through her EHC plan, the school does not therefore have to make reasonable adjustments by providing these auxiliary aids and services for her.

And:

A disabled pupil at an infant school has diabetes and requires daily support with reading blood sugar levels and insulin injections. He is not classified as having SEN and therefore receives no support through the SEN framework. He is, however, disabled and therefore if the lack of daily support places him at a substantial disadvantage, the school would be under a duty to make the adjustment of providing the support, if ti would be reasonable to do so.

And:

A disabled pupil with dyslexia finds it very difficult to read text typed on white paper. The school provides handouts on yellow paper for her. This would be a reasonable adjustment for this pupil.

The duties in respect of children with special educational needs under the Equality Act 2010 can usefully supplement the duties in the Children and Families Act 2014, particularly when a disabled child lack an EHC plan, or where there is a failure to make reasonable adjustments to remove disadvantages, which are wider than those falling within the scope of special educational provision. Instances of failures to make reasonable adjustments, will also be material that can usefully be deployed in order to argue that an EHC plan for a disabled child or young person is necessary.

 

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