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A person is classed as disabled under the Equality Act 2010 if they have:
a physical or mental impairment that has a substantial and long-term negative effect on a person’s ability to carry out normal day-to-day activities.
Definitions
- Mental impairment includes but not limited to: learning difficulties, autism, dyslexia, speech and language difficulties, attention deficit hyperactivity disorder (ADHD).
- Physical impairment includes but is not limited to: sensory difficulties such as visual or hearing impairments.
- Normal day-to-day means things that people do on a regular basis, for example mobility, dressing or cleaning (physical co-ordination), and having a conversation.
- Long-term usually means the impairment should have lasted or be expected to last at least a year.
- Substantial means not minor or trivial.
Some specified medical conditions, HIV, multiple sclerosis and cancer are all considered as disabilities, regardless of their effect.
The Equality Act 2010 (1.9) also states that:
It is unlawful for a school to discriminate against a pupil or prospective pupil by treating them less favourably because of their:
- sex
- race
- disability
- religion or belief
- sexual orientation
- gender reassignment
- pregnancy or maternity
These are known as ‘protected characteristics‘.
In England and Wales the Equality Act 2010 applies to all maintained and independent schools, including Academies; and maintained and non-maintained special schools.
The Act makes it unlawful for the responsible body of a school (i.e. the Local Authority for maintained schools in England and Wales or the Governors for non maintained schools), to discriminate against, harass or victimise a pupil or potential pupil with these protected characteristics:
- in relation to admissions,
- in the way it provides education for pupils,
- in the way it provides pupils access to any benefit, facility or service, or
- by excluding a pupil or subjecting them to any other detriment.
Disability Discrimination
Equality legislation works differently for disability than for other protected characteristics in that generally it is expected that people are treated equally (i.e. that you must treat a black person as well than a white person, or a man as favourably as a woman). However, for disability, you may, and often must, treat a disabled person more favourably than a person who is not disabled. You may have to make changes to your practices to ensure, as far as is reasonably possible, that a disabled person can benefit from what you offer to the same extent that a person without that disability can.
So in a school setting the general principle is that they have to treat male and female, black and white, gay and straight pupils equally – but may be required to treat disabled pupils differently, even perhaps more favourably, so that they can access and participate in the education and other activities the school provides.
Legislation around disability also works in only one direction – it protects disabled people but not people who are not disabled. Again, this means that schools are allowed to treat disabled pupils more favourably than non-disabled pupils, and in some cases are required to do so, by making reasonable adjustments to put them on a more level footing with pupils without disabilities.
We sometimes hear of schools saying that they cannot make a special case for a particular child as it would be unfair to the other children. However if this pupil meets the disability criteria under the Equality Act 2010, then the school can (and has a duty to) treat this pupil differently if it is reasonable to do so.
Types of Discrimination
Direct Discrimination
A school must not treat a disabled pupil less favourably simply because that pupil is disabled – for example by having an admission bar on disabled applicants.
There can be no justification for direct discrimination in any circumstances. If a school discriminates against a pupil purely because of his or her disability (even if they are trying to achieve a legitimate aim) then it would be unlawful discrimination as there can be no justification for their actions
Indirect Discrimination
A school must not do something which applies to all pupils but which is more likely to have an adverse effect on disabled pupils only – for example having a rule that all pupils must demonstrate physical fitness levels before being admitted to the school – unless they can show that it is done for a legitimate reason, and is a proportionate way of achieving that legitimate aim. (This is different from direct discrimination where there can be no justification).
Discrimination arising from disability
A school must not discriminate against a disabled pupil because of something that is a consequence of their disability – for example by not allowing a disabled pupil on crutches outside at break time because it would take too long for her to get out and back. Like indirect discrimination, discrimination arising from disability can potentially be justified.
Harassment
A school must not harass a pupil because of his disability – for example, a teacher shouting at the pupil because the disability means that he is constantly struggling with class-work or unable to concentrate
Reasonable adjustments
The duty to make reasonable adjustments applies only to disabled people. For schools the duty is summarised as follows:
- Where something a school does places a disabled pupil at a disadvantage compared to other pupils then the school must take reasonable steps to try and avoid that disadvantage.
- Schools will be expected to provide an auxiliary aid or service for a disabled pupil when it would be reasonable to do so and if such an aid would alleviate any substantial disadvantage that the pupil faces in comparison to non-disabled pupils. Schools are not subject to the requirement of reasonable adjustment duty concerned with make alterations to physical features because this is already considered as part of their planning duties.
The picture below is a good illustration of this. On the left, everyone is being treated equally (they have one box each). However, the child in the wheelchair cannot make use of the box to be able to see the game. In the picture on the right, each person has been given what they need to be able to see the game. Adjustments should be considered and made where these are reasonable.
Auxiliary aids and services
Many disabled children will have a special educational need (SEN) and may need auxiliary aids which are necessary as part of their SEN provision; and in some circumstances as part of a formal EHC Plan. These aids may be provided in the school under the SEN route, in which case there will be no need for the school to provide those aids as part of their reasonable adjustment duty.
Schools will have to consider whether to provide auxiliary aids as a reasonable adjustment for disabled children. This will particularly be the case where a disabled child does not have an EHC Plan or where the EHC Plan does not provide the auxiliary aid or service.
The term “auxiliary aids” found in the Equality Act 2010 covers both auxiliary aids and services but there is no legal definition for what constitutes auxiliary aids and services. Considering the everyday meaning of the words, is, however, helpful. Legal cases have referred to the Oxford English Dictionary definition of auxiliary as “helpful, assistant, affording aid, rendering assistance, giving support or succour” and that auxiliary aids and services “are things or persons which help.” Examples of what may be considered an auxiliary aid could be; hearing loops; adaptive keyboards and special software. However the key test is reasonableness and what may be reasonable for one school to provide may not be reasonable for another given the circumstances of each case.
Some disabled children will have a need for auxiliary aids which are not directly related to their educational needs or their participation in school life, for example, things which are generally necessary for all aspects of their life, such as hearing aids. It is likely to be held that it would be unreasonable for a school to be expected to provide these auxiliary aids.
What does it mean by ‘reasonable’?
Schools can look at the published guidance on the auxiliary aids duty which includes advice on when it would be reasonable for them to have to make adjustments and what factors they as a school should take into account in its assessment of whether or not it
would be reasonable to make any particular adjustment.
If an adjustment is reasonable then it should be made and there can be no justification for why it is not made. However, schools will not be expected to make adjustments that are not reasonable.
The Act does not set out what would be a reasonable adjustment or a list of factors to consider in determining what is reasonable. It will be for schools to consider the reasonableness of adjustments based on the circumstances of each case. However, factors a school may consider when assessing the reasonableness of an adjustment may include the financial or other resources required for the adjustment, its effectiveness, its effect on other pupils, health and safety requirements, and whether aids have been made available through the Special Educational Needs route.
Cost will inevitably play a major part in determining what is reasonable and it is more likely to be reasonable for a school with substantial financial resources to have to make an adjustment with a significant cost, than for a school with fewer resources. For example, a small rural primary school may not be able to provide specialised IT equipment for any disabled pupils who may need it and it may not be reasonable for the school to provide that equipment. On the other hand, a much larger school might reasonably be expected to provide it.
Often, though, effective and practicable adjustments for disabled pupils will involve little or no cost or disruption and are therefore very likely to be reasonable for a school to have to make.
Schools generally will try to ensure that disabled pupils can play as full a part as possible in school life and the reasonable adjustments duty will help support that. However, there will be times when adjustments cannot be made where adjustments are not deemed to be reasonable.
The reasonable adjustments duties on schools are intended to complement the accessibility planning duties and the existing SEN provisions which are part of education legislation, under which local authorities have to provide auxiliary aids to pupils with an EHC Plan
What should i do if i think my child is being discriminated against.
If you think that your child is being discriminated against because of their disability then the first thing you should do is contact the school in writing with the following:
- How your child or young person meets the disability criteria (as per the definition within Equality Act 2010).
- What type of discrimination has taken place
- Keep to the facts and include date(s), location(s), who was involved, witness(es)
- Explain the affect this has had on your child / young person and yourself
- What you would like the school to do to make things better (i.e. reasonable adjustments, an apology etc).
Appeals to the SEND Tribunal
If this initial letter does not have the desired outcome then you may need to consider following the school’s complaints stages or you may want to consider appealing to the SEND Tribunal. The SEND Tribunal will listen to discrimination appeals based on disability only (i.e. not race or religion etc).
Please note: Appeals to the tribunal are time limited, in that you must send your complaint to the tribunal within 6 months of the discrimination taking place. If you send your complaint more than 6 months later, you’ll be asked to explain why.
Your complaint can include events which happened more than 6 months ago, as long as these directly relate to events that have taken place in the last 6 months. The tribunal must be able to treat events as a single complaint about one ongoing issue.
For example, if your child was permanently excluded from school after a series of fixed-term exclusions which you believe were all because of the child’s disability, the tribunal could treat them as a single complaint.
You can find out more information about appealing to the SEND Tribunal on the grounds of disability discrimination on the GOV.UK site .
If you think you will struggle to do any of this on your own then please do contact us by email: send.ias@westsussex.gov.uk or call us on: 0330 222 8555 to discuss how we may be able to support you.