The Equality Act 2010 Guidance for Schools states that a person has a disability if:
“they have a physical or mental impairment which has a long term and substantial adverse effect on their ability to carry out normal day-to-day activities.”
A school must not discriminate against a disabled pupil in relation to admissions, how education is provided, exclusion, any other disadvantage, denial of opportunity or choice. How education is provided includes school activities, such as extra-curricular and leisure activities, afterschool and homework clubs, sports activities and school trips, assessments and internal exams, managing behaviour and discipline, school facilities, including libraries and IT.
There are several types of disability discrimination that children may experience at school: direct disability discrimination, indirect disability discrimination, discrimination arising from disability, a failure to make reasonable adjustments and harassment and victimisation.
Direct discrimination is when a person is treated less favourably than others because of their disability. It can also be discrimination based on perception, for example treating a pupil less favourably because they’re mistakenly thought to be disabled. For Example: An autistic pupil is excluded from a school trip because the school believes that they won’t be able to join in the activities. Direct discrimination will always be unlawful.
Indirect disability discrimination is when a school policy or practice is applied in the same way to everyone but puts pupils with a disability at a disadvantage. That is unless it can be justified as being a proportionate means of achieving a legitimate aim such as the health, safety and welfare of pupils.
For Example: A school has a policy that if a pupil breaks the school rules three times, he or she will automatically be suspended. Some disabled pupils may break rules without realising it or due to distress as a result of their unmet needs. Applying this policy without any flexibility is probably indirect disability discrimination.
Discrimination arising from disability occurs if a person is treated unfavourably because of something to do with their disability and the response – such as excluding them from school – cannot be justified as being a ‘proportionate means of achieving a legitimate aim’. Examples of legitimate aims include to ensure the safety of pupils and staff, but the school would also need to show that their response is proportionate. As exclusion can lead to social isolation, increased anxiety and depression, parents might argue that a more proportionate response would be to: have an understanding of the disability, be empathetic , ensure that the child’s needs are met, provide appropriate support, work on reducing their anxieties, implement effective strategies and approaches, make the necessary tailored reasonable adjustments. It would not be discrimination if the school did not know that the pupil was disabled.
For Example: A disabled pupil is excluded for flapping his arms at a supply teacher. The teacher was alarmed by what he perceived to be threatening behaviour. The pupil was distressed and had flapped his arms because the supply teacher had told him that they were doing an activity which meant he could not sit in his usual seat. Since the pupil’s reaction was connected to him being disabled, the exclusion would be discrimination arising from disability. The school had not advised the supply teacher of the reasonable adjustment (allowing the pupil to always sit in the same seat), so they would be unlikely to be able to justify the discrimination and therefore it would be unlawful.
Reasonable adjustments are changes made to ensure disabled pupils can participate in their education and enjoy the other facilities that the school provides. Schools have a duty to make reasonable adjustments to avoid putting disabled at a substantial disadvantage compared to non-disabled pupils. This applies to provisions, criteria and practices – the way in which a school operates on a daily basis, for example an exclusion or discipline policy, physical features, such as entrances and exits, toilets, lighting, flooring and furniture, auxiliary aids and services, for example supportive equipment or a member of staff.
Examples of reasonable adjustments for an autistic child might be to allow them to: wear ear defenders or a slightly different piece of uniform to accommodate sensory sensitivities, start and finish lessons at slightly different times so that they can avoid busy and crowded corridors, have support, or make alternative arrangements, for assemblies, school plays and sports days and to have access to a ‘quiet’ area or separate work station. Many disabled pupils need support to enable them to take part in school trips. It is unlawful for a school to charge money for making a reasonable adjustment.
When considering reasonable adjustments, schools should consider whether: Pupils are at a substantial disadvantage, for example are they falling behind with schoolwork? This disadvantage could be avoided, for example by one-to-one support or specialist teaching. Is it reasonable to take these steps? A recent Tribunal ruling means that schools/colleges must make sure they have made appropriate reasonable adjustments for pupils with disabilities, aged under 18 before they can exclude them.
A loophole in the Equality Act meant schools didn’t have to make reasonable adjustments for disabled children when they had a ‘tendency to physical abuse’ – even when that was caused by a lack of appropriate support. However, this loophole no longer applies, and allowances should be made for behaviour that is due to a pupil being disabled and their needs not being met. Schools need to ensure that reasonable adjustments are made to allow students to fully participate in their education.
The term ‘reasonable’ is not defined in the Act, but things that are likely to be taken into account are the: extent to which the disadvantage would be overcome, extent to which the pupil is supported through SEN legislation, resources the school has, and the costs and practicality of making the adjustment, extent to which the pupil will suffer if the reasonable adjustment is not made, health and safety requirements, need to maintain academic and other standards and the interests of other pupils and prospective pupils.
When making reasonable adjustments, schools do not have to alter or remove physical features of the school, but they have a general duty to plan for better access for their pupils.
Schools have a statutory duty to provide an accessibility plan and parents can ask for a copy of the school’s accessibility plan. This plan should be updated every 3 years.