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Equality Act 2010

Organisations including educational settings must take reasonable steps to remove barriers children and young people face due to their disability. This is to ensure that they are not put at a significant disadvantage compared to children who do not have a disability. This is called a duty to make reasonable adjustments under the Equality Act 2010. This is an anticipatory duty therefore the school/college or local authority should prepare itself in advance of admitting disabled pupils.

The Equality Act 2010 says:

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.

(Section 6)

If your child does not have a diagnosis this does not necessarily mean that they do not have a disability under the Equality Act. What would need to be established is that they have a condition which is affecting their ability to function day-to-day. The term ‘long term’ would be if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the individual’s life. The impact must be more than minor or trivial to be considered substantial.

Reasonable Adjustments

Where a provision, criterion or practice puts a child at a substantial disadvantage in relation to others who do not have a disability, the school/college must take reasonable steps to avoid the disadvantage. As adjustments only have to be made if it is reasonable to do so, consideration is given to different points, for example the nature of the disability, how practicable the changes are, the cost of making the changes and any changes that have already been made.

There is also a requirement for schools/colleges to take reasonable steps to provide auxiliary aids such as a piece of equipment, a service or adapted text or personal assistance, where a disabled pupil would be put at a substantial disadvantage if compared with others who are not disabled.

Schools are not under a duty to change physical features where they put a disabled pupil at a disadvantage. However this duty does apply to Colleges and Universities, these education settings are under a duty to take reasonable steps to avoid substantial disadvantage where a physical feature of the building or premises puts a young person at a substantial disadvantage in comparison with non-disabled students. This may include removing the physical feature in question or altering it so the student has a reasonable means of avoiding it.

The SEND Code of Practice says:

The parents of disabled children and disabled young people in school have the right to make disability discrimination claims to the Tribunal if they believe that their children or the young people themselves have been discriminated against by schools or local authorities when they are the responsible body for a school. (11.53)

It would be useful to be aware that there are conditions which would not be deemed to be impairments under the Equality Act. This includes the tendency to physically hurt others. The law does not distinguish between someone who is violent and someone who has an underlying disability and as a result may hit out on occasion. This however, doesn’t prevent the tribunal looking at other relevant aspects such as the schools duty to make reasonable adjustments.

What to do if you are worried reasonable adjustments are not being made?

If you have concerns the first step would be to discuss your worries with the school, ensuring that they are fully aware of the nature and extent of your child’s disability. You may find it helpful to ask what reasonable adjustments the school are making, and explore other support strategies together. Provide the school with any evidence you have from health services regarding your child’s disability or contact details for health professionals working with your child who the school can liaise with regarding reasonable adjustments. You may also wish to include the Governors in this discussion or formalise your worries and concerns in writing to the Head Teacher and Governing Body of the school.

If your child has an Education Health and Care (EHC) Plan, refer to the contents named within the provision. You may find it useful to also discuss your concerns with a member of the EHC Assessment Team. Note – registering a claim with the tribunal does not require you to have raised your concerns with the school or Governing Body in the first instance.

If following your discussions with the school you still have concerns that your child is or has been discriminated against due to their disability you may wish to register a claim of disability discrimination with the First Tier SEND Tribunal. You must do this within 6 months of the event which would be the subject of the claim.

Typical examples of what the Tribunal may order include;

  • a formal written apology
  • disability training/ guidance for staff
  • drawing up, review or alteration of school policies
  • meetings between the local authority, school, parents and pupil to review what reasonable adjustments may be required
  • that a school makes reasonable adjustments e.g. relocation of facilities

The Tribunal cannot order;

  • financial compensation
  • changes to a child’s EHC Plan
  • the dismissal of a teacher

In addition to a failure to make reasonable adjustments there are also other types of disability discrimination which the tribunal can hear under the Equality Act 2010, these are;

  • Direct Discrimination – when a person is treated less favourably due to their disability compared with another who does not have a disability
  • Discrimination arising out of disability – where a person is treated less favourably because of something arising in consequence of their disability and the person cannot show that the treatment is a proportionate means of achieving a legitimate aim. This would not apply if the person did not know and could not reasonably have been expected to know that the other individual has the disability.
  • Indirect discrimination – This occurs when a provision, criterion or practice is applies in the same way for all pupils but this has the effect of putting disabled pupils at a particular disadvantage.
  • Harassment and victimisation – When a person engages in unwanted conduct related to an individual’s disability and this has the purpose/effect of violating the individual’s dignity or creating an intimidating, hostile, degrading humiliating or offensive environments for the individual. Victimisation occurs when a person victimises another, if they subject the individual to a detriment because they have a disability or they believe they have a disability.

Guidance on how to make a disability discrimination claim to the Tribunal is available from the Ministry of Justice website;

Visit the the Ministry of Justice website

Please note that claims against education providers other than schools (for example colleges) a disability discrimination claim must be brought to the County Court rather than the SEND Tribunal. Please seek Legal Advice for further information regarding this.

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Unless otherwise stated.