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 therefore mustn’t discriminate against a disabled pupil in relation to admissions, how their education is provided, exclusion, any other disadvantage, denial of opportunity or choice. That provision of education includes all school activities, spanning assessments and internal exams, behaviour/discipline management and use of school facilities, as well as any extracurricular and leisure activities, after-school and homework clubs, sports activities and school trips.
Schools have a responsibility for ensuring that disabled pupils can access internal examinations, but it’s also unlawful for qualification bodies to discriminate against pupils taking formal examinations. As such, there are various ways in which pupils can be supported in their exams through measures such as granting them additional time, making a scribe available or enabling them to use assistive technology.
Unlawful discrimination
Children may experience five types of disability discrimination at school – direct disability discrimination; indirect disability discrimination; discrimination arising from disability; failure to make reasonable adjustments; and harassment and victimisation.
Direct discrimination occurs when a person is treated less favourably than others because of their disability. This can be a form of discrimination based on perception, through treating a pupil less favourably because they’re mistakenly thought to be disabled. For instance, an autistic pupil being 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. Those schools with a selective admissions policy, such as grammar schools, can select pupils based on ability or aptitude, so long as they comply with their duty to make reasonable adjustments for disabled pupils during the assessment process.
Indirect disability discrimination arises when a school policy or practice is applied in the same way to everyone, but puts pupils with a disability at a disadvantage. The only exception is when the policy or practice can be justified as a proportionate means of achieving a legitimate aim, such as the health, safety and welfare of pupils.
For example, a school may operate a ‘three strikes’ policy which states that if a pupil breaks school rules three times, he or she will automatically be suspended. Some disabled pupils may break rules without realising, or due to distress as a result of having their needs unmet. Applying such policies without any flexibility may well lead to indirect disability discrimination.
‘Legitimate aims’
Discrimination arising from disability will occur if a person is treated unfavourably because of something to do with their disability, and if the response – such as exclusion – can’t be justified as a ‘proportionate means of achieving a legitimate aim’. ‘Legitimate aims’ in this instance may include ensuring the safety of pupils and staff, but the school would need to demonstrate that their response is proportionate.
Since exclusion can lead to social isolation, increased anxiety and depression, the parents of a disabled pupil might well argue that a more proportionate response would be to develop a better understanding of the child’s disability; demonstrate empathy and ensure the child’s needs are met. The school could also provide appropriate support, work on reducing the pupil’s anxieties and make any necessary reasonable adjustments. It wouldn’t constitute discrimination if the school were unaware that the pupil was disabled.
For example, let’s imagine a disabled pupil is excluded from the classroom for flapping his arms at a supply teacher, the teacher having been alarmed by what they perceived to be threatening behaviour. It then emerges that the pupil was distressed, and had flapped his arms because the supply teacher told him they were about to do an activity which meant he couldn’t sit in his usual seat.
Since the pupil’s reaction was connected to him being disabled, exclusion in this instance would amount to discrimination arising from the pupil’s disability. Because the school hadn’t advised the supply teacher of a reasonable adjustment made for the pupil – allowing him to always sit in the same seat – it’s unlikely that the discrimination could be justified, and would therefore be unlawful.
Addressing disadvantage
Reasonable adjustments are changes made to ensure that disabled pupils can participate in their education and enjoy all the facilities that a school provides. Schools have a duty to make reasonable adjustments to avoid putting disabled pupils at a substantial disadvantage compared to their non-disabled peers. This applies to all provisions, criteria and practices, and indeed every aspect of a school’s daily operations – exclusion and discipline policies, physical features (such as entrances and exits), toilets, lighting, flooring and furniture, auxiliary aids and services (such as the provision of supportive equipment or specialist staff).
Reasonable adjustments for an autistic child might involve allowing them to wear ear defenders, or a slightly modified school uniform to accommodate sensory sensitivities. They may be able to start and finish lessons at slightly different times in order to avoid busy and crowded corridors, or access alternative arrangements during assemblies, sports days and other whole school events.
Other pupils may require the use of a ‘quiet’ area or separate work station throughout the day, and many disabled pupils will need some form of support if they’re to fully take part in school trips. It’s unlawful for schools to charge money when making a reasonable adjustment.
When contemplating reasonable adjustments, schools should consider whether pupils are at a substantial disadvantage Are they falling behind with schoolwork? Could this disadvantage be addressed by arranging for one-to-one support or specialist teaching? Would taking these steps be reasonable?
Previously, a loophole in the Equality Act meant that schools didn’t have to make reasonable adjustments for disabled children when they had a ‘tendency to physical abuse’ – even if the issue in question was caused by a lack of appropriate support. This loophole no longer applies, however, with the result that allowances must be made for behaviours stemming from disabled pupils’ needs not being met.
Defining ‘reasonable’
The term ‘reasonable’ isn’t actually defined in the Act, but there are a number of factors that schools may well need to take into account. Among these are the extent to which a reasonable adjustment can overcome a form of disadvantage, and the level to which a pupil is currently being supported through existing SEN legislation.
Weighed against these will be the resources the school currently has, the costs and practicality of making the adjustment, and any ways in which the pupil will suffer if the reasonable adjustment isn’t made. To that, you can also add the need to consider health and safety requirements, maintain academic standards and observe the interests of other current and prospective pupils.
To make reasonable adjustments, schools won’t necessarily have to alter or remove any physical aspects of their premises, but they absolutely have a general duty to plan better access for their pupils wherever possible. Schools have a statutory duty to provide copies of their accessibility plan to parents and other stakeholders upon request, and should look to update their plans every three years.
Lesley Mifsud is head access auditor and CEO at EA Audits; visit ea-audits.com or follow @eaaudits.
