Discrimination and disability duties

Written by: Philippa Stobbs | Published:
Image: iStock

Philippa Stobbs explains key aspects of disability law and how they apply to school

The Children and Families Act became law in September 2014 and with it came a shake-up of how schools are required to treat pupils with SEN. There is a focus on outcomes and a requirement to include parents, carers and young people in decision-making. Key was the replacement of Statements with Education, Health and Care Plans. Schools are expected to have a more integrated approach to meeting SEN duties under the Children and Families Act and disability duties under the Equality Act.

Every year there are 100 to 150 claims against schools for disability discrimination and about half of them decide that schools have acted unlawfully. The claims can be made by parents or young people within six months of the discriminatory action.

This is a relatively low number considering that appeals in relation to SEN run to about 3,500 cases every year, but schools can still act to avoid this unnecessary discrimination.

Schools are most likely to discriminate against disabled pupils by applying a blanket policy. This might be any policy: a school uniform policy, a healthy snacks policy, a behaviour policy have all been judged discriminatory.

The problem is that schools, often acting with a strong sense of fairness, seek to implement policies consistently for all pupils. But whereas equality for most groups is rooted in equal treatment, schools often must treat disabled pupils differently, making reasonable adjustments and sometimes treating them more favourably.

Central to getting this shift in thinking right is how schools make reasonable adjustments for disabled children. Under the law, schools must make reasonable adjustments so that a disabled pupil is not placed at substantial disadvantage compared with their peers.

There are two important features of the duty: first, the definition of “substantial” in the Equality Act is more than minor or trivial, meaning that it is relatively easy to put a disabled pupil at this level of disadvantage. Second, schools need to think ahead and make adjustments to prevent problems; it is an anticipatory duty.

Bearing this in mind, schools must make reasonable adjustments to their policies and practices – everything from the curriculum to anti-bullying policies. They must also provide auxiliary aids which can be in the form of special equipment or services.

The best way for schools to think about which reasonable adjustments may be most successful is to involve parents and pupils in planning. Schools may need to call on specialist advice too, but most reasonable adjustments cost little or nothing and are relatively easy to implement.

Reasonable adjustments do not require making changes to the physical environment – while many organisations have this duty, it doesn’t apply to schools. That said, schools must have an accessibility plan that sets out how, over time, the school is going to be more accessible to disabled pupils. It must set out how the school will increase access to the curriculum for pupils, improve the physical environment to improve access, and make written information more accessible by providing materials in a range of different ways.

The advantages of making these changes should be that, over time, the culture and attitudes of the school community become more welcoming, outcomes for disabled pupils improve, and the school does not have to make so many individual adjustments for individual children because, in the widest sense, the school is more accessible for all pupils.

Most schools find that improving the school for disabled pupils has the effect of improving the school for everyone: other pupils, staff and parents.

  • Philippa Stobbs is assistant director of the Council for Disabled Children, based at the National Children’s Bureau.

Further information

A guide to the Equality Act for schools is available via the Council for Disabled Children at http://bit.ly/2cvhQX2


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