Schools have a duty to provide inclusive education, ensuring all students can achieve
Many children and young people with Special Educational Needs ("SEN") will also be disabled within the meaning of the Equality Act 2010 ("the Equality Act"). This blog post looks at the various types of discrimination under the Act and examples of how they might arise in practice. Part 2 will consider what a claim for disability discrimination might involve and the remedies available to the First Tier Tribunal SEND ("the SEND Tribunal").
Under the Equality Act a disabilty is defined as being when a person has a 'physical or mental impairment which has a substantial and long term adverse effect on that person's ability to carry out normal day to day activities'. Substantial means that the effect is more than minor or trivial and long term means that the effect lasts or is likely to last for a year or more. This is a deliberately wide and expansive definition, applying not only to physical and mental health conditions such as epilepsy and anxiety/depression, but also neurodiversities such as dyslexia and autism. Importantly, a child or young person does not require a diagnosis to qualify as having a disability; although having one or being on an assessment pathway is likely to be good evidence of a disability and in some cases, e.g. being certified blind or partially sighted, it is determinative.
All education settings (including indepenent schools and colleges) have a legal duty to comply with the provisions of the Equalitiy Act, in contrast to duties relating to SEN under the Children and Families Act 2014, which only apply to maintained settings. In particular, education settings must not discriminate against disabled students, either directly or indirectly, they must not treat them unfavourably, harass or victimise them and they must make reasonable adjustments to accomodate their disability.
Direct discrimination, i.e., treating a disabled pupil less favourably simply because that pupil is disabled - for example by having an admission bar on disabled applicants - is, thankfully, relatively uncommon. Sadly some instances of unfavourable treatment, such as penalising students for time off for medical appointments connected to their disability, is not. Similarly, indirect discrimination is also more widespread. This occurs when a school applies a practice or criterion equally to all pupils without exception - often called a blanket policy - but which has an adverse effect on pupils with disability. So for example, if all pupils were expected to have 95% attendance to go on a school trip, this would indirectly discriminate against disabled pupils who had a lower attendance record due to their disability, e.g. students with Chronic Fatigue Syndrome. There can never be any justification for direct discrimination and if it is found to have occurred a school has no legal defence. By contrast, it is possible to justify unfavourable treatment or indirect discrimination if it can be shown that it serves a legitimate aim and was a proportionate means of achieving that aim.
The duty to make reasonable adjustments means that a school must take positive steps to ensure that disabled students can fully participate in the education provided by the school, including non-academic benefits, facilities and services offered by the school for its students. Where the allegation is a failure to make reasonable adjustments, the school will have a defence if it can show that the adjustment requested was not in fact reasonable. This is a question of fact which ultimately it would be for the SEND Tribunal to resolve and would be likely to involve consideration of the financial cost of the adjustment and the resources of the school, the practicality of the adjustment and need to maintain academic, musical, sporting and other standards.
If you feel your child or young person has experienced any type ofdisability discrimination SEND Advocacy can provide advice and support. If you need someone in your corner to help you secure the education your child deserves, contact us today.
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