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The Right to Equal Treatment: Discrimination in Education
The Special Educational Needs and Disability Act 2001 amended the DDA to prevent discrimination against disabled people in their access to education. This introduced duties in three main areas:
1. The duty not to discriminate.
2. Planning duties upon educational establishments.
3. The Special Educational Needs (SEN) framework.
The Duty not to Discriminate
This duty is imposed on schools and bodies responsible for the provision of further or higher education. The duty is not to treat disabled pupils or students less favourably for disability related reasons. This is similar in scope to the duty placed on employers, trade unions or suppliers of goods and services and includes a duty to make reasonable adjustments to avoid putting disabled pupils at a substantial disadvantage. A key difference is that less favourable treatment is justified if it is the result of a permitted form of selection.
The DDA provides that disabled students may not be discriminated against in:
* the arrangements made for determining admission to the school or further or higher education establishment;
* the terms on which admission is offered or by the refusal of an application for admission;
* refusing or deliberately omitting to accept an application for admission to the school as a pupil;
* the education or associated services provided for or offered to pupils at the school or further or higher education establishment.
However, the DDA does not require a Local Education Authority (‘LEA’) to remove or alter a physical feature (for example one arising from the design or construction of the school premises or the location of resources) or to provide auxiliary aids or services.
In respect of whether it is reasonable to take a particular step in order to comply with its duty not to place disabled pupils at a substantial disadvantage by catering for their needs, an LEA must have regard to the provisions of the DRC’s relevant code of practice. The Code provides that in considering what might constitute a substantial disadvantage a school will need to take account of a number of factors, which may include: the time and effort that might need to be expended by a disabled child; the inconvenience, indignity or discomfort a disabled child might suffer; the loss of opportunity or the diminished progress that a disabled child may make in comparison with his or her peers who are not disabled.
In respect of what constitutes a ‘reasonable’ adjustment, the code of practice suggests that the following factors may be relevant:
* The need to maintain academic, musical, sporting and other standards.
* The financial resources available to the responsible body.
* The cost of taking a particular step.
* The extent to which it is practicable to take a particular step.
* The extent to which aids and services will be provided to disabled pupils at the school under the Education Act 1996.
* Health and safety requirements.
* The interests of other pupils and persons who may be admitted to the school as pupils.
The duty on schools to make reasonable adjustments is also anticipatory. It is the potential for a substantial disadvantage that should trigger a consideration of what reasonable steps might need to be taken, not whether there are currently any pupils who require such steps.
Planning Duties
The DDA imposes duties on Local Education Authorities (LEAs) and schools to improve access to education over time. LEAs must draw up accessibility strategies and schools must prepare accessibility plans, these have to address three areas of planned improvements in access for disabled students:
* Improvements in access to the curriculum.
* Physical improvements to increase access to education and associated services.
* Improvements in the provision of information in a range of formats for disabled students.
The governing body of a maintained school must explain in its annual report to parents the admission arrangements for disabled pupils, how the governing body helps disabled pupils gain access and what it will do to make sure they are treated fairly, as well as information about their accessibility plan.
The Special Educational Needs (SEN) framework
The SEN framework is meant to make provision to meet the special educational needs of individual children. A child has special educational needs if he of she has a learning difficulty that calls for special educational provision. Children with a disability have special educational needs if they have any difficulty in accessing education and if they need any special educational provision to be made for them. Those with more severe learning difficulties or disabilities, whose needs cannot be met by internal support structures at school, should be the subject of statements of SEN. Anything additional to or different from that which is normally available in schools in the area will count. The framework encourages children with special educational needs to be educated in mainstream schools so long as that is compatible with the efficient education of other children.
The DDA provides for parental access to information from the school and extends the jurisdiction of the Special Educational Needs and Disability Tribunal (‘SENDIST’) to deciding whether schools or colleges have discriminated under the DDA. If parents do not agree with the decisions made by an LEA about the nature of their child’s needs or how their child’s needs should be met they can appeal to the Tribunal.
In respect of the relationship between the SEN framework and the obligations under the DDA, it appears that in the case of reasonable adjustments by way of amendments to policies or practices of schools, or arrangements within and around the school, the obligation to make these would lie primarily through the DDA. However, in cases concerning the provision of equipment or extra staffing, the means of securing such provision would lie through the SEN statementing route.
A discrimination complaint involving the use of and interpretation of the DDA can be brought in the SENDIST. The time limit for such a claim is six months and each party may bring up to five witnesses. The SENDIST is not empowered to order compensation but may, amongst other things, order training for staff, guidance for staff, changes to policies, practices and procedures, the admission of a disabled child to an independent school and a replacement trip or additional tuition for a disabled child who has missed out on a school experience.
1. The duty not to discriminate.
2. Planning duties upon educational establishments.
3. The Special Educational Needs (SEN) framework.
The Duty not to Discriminate
This duty is imposed on schools and bodies responsible for the provision of further or higher education. The duty is not to treat disabled pupils or students less favourably for disability related reasons. This is similar in scope to the duty placed on employers, trade unions or suppliers of goods and services and includes a duty to make reasonable adjustments to avoid putting disabled pupils at a substantial disadvantage. A key difference is that less favourable treatment is justified if it is the result of a permitted form of selection.
The DDA provides that disabled students may not be discriminated against in:
* the arrangements made for determining admission to the school or further or higher education establishment;
* the terms on which admission is offered or by the refusal of an application for admission;
* refusing or deliberately omitting to accept an application for admission to the school as a pupil;
* the education or associated services provided for or offered to pupils at the school or further or higher education establishment.
However, the DDA does not require a Local Education Authority (‘LEA’) to remove or alter a physical feature (for example one arising from the design or construction of the school premises or the location of resources) or to provide auxiliary aids or services.
In respect of whether it is reasonable to take a particular step in order to comply with its duty not to place disabled pupils at a substantial disadvantage by catering for their needs, an LEA must have regard to the provisions of the DRC’s relevant code of practice. The Code provides that in considering what might constitute a substantial disadvantage a school will need to take account of a number of factors, which may include: the time and effort that might need to be expended by a disabled child; the inconvenience, indignity or discomfort a disabled child might suffer; the loss of opportunity or the diminished progress that a disabled child may make in comparison with his or her peers who are not disabled.
In respect of what constitutes a ‘reasonable’ adjustment, the code of practice suggests that the following factors may be relevant:
* The need to maintain academic, musical, sporting and other standards.
* The financial resources available to the responsible body.
* The cost of taking a particular step.
* The extent to which it is practicable to take a particular step.
* The extent to which aids and services will be provided to disabled pupils at the school under the Education Act 1996.
* Health and safety requirements.
* The interests of other pupils and persons who may be admitted to the school as pupils.
The duty on schools to make reasonable adjustments is also anticipatory. It is the potential for a substantial disadvantage that should trigger a consideration of what reasonable steps might need to be taken, not whether there are currently any pupils who require such steps.
Planning Duties
The DDA imposes duties on Local Education Authorities (LEAs) and schools to improve access to education over time. LEAs must draw up accessibility strategies and schools must prepare accessibility plans, these have to address three areas of planned improvements in access for disabled students:
* Improvements in access to the curriculum.
* Physical improvements to increase access to education and associated services.
* Improvements in the provision of information in a range of formats for disabled students.
The governing body of a maintained school must explain in its annual report to parents the admission arrangements for disabled pupils, how the governing body helps disabled pupils gain access and what it will do to make sure they are treated fairly, as well as information about their accessibility plan.
The Special Educational Needs (SEN) framework
The SEN framework is meant to make provision to meet the special educational needs of individual children. A child has special educational needs if he of she has a learning difficulty that calls for special educational provision. Children with a disability have special educational needs if they have any difficulty in accessing education and if they need any special educational provision to be made for them. Those with more severe learning difficulties or disabilities, whose needs cannot be met by internal support structures at school, should be the subject of statements of SEN. Anything additional to or different from that which is normally available in schools in the area will count. The framework encourages children with special educational needs to be educated in mainstream schools so long as that is compatible with the efficient education of other children.
The DDA provides for parental access to information from the school and extends the jurisdiction of the Special Educational Needs and Disability Tribunal (‘SENDIST’) to deciding whether schools or colleges have discriminated under the DDA. If parents do not agree with the decisions made by an LEA about the nature of their child’s needs or how their child’s needs should be met they can appeal to the Tribunal.
In respect of the relationship between the SEN framework and the obligations under the DDA, it appears that in the case of reasonable adjustments by way of amendments to policies or practices of schools, or arrangements within and around the school, the obligation to make these would lie primarily through the DDA. However, in cases concerning the provision of equipment or extra staffing, the means of securing such provision would lie through the SEN statementing route.
A discrimination complaint involving the use of and interpretation of the DDA can be brought in the SENDIST. The time limit for such a claim is six months and each party may bring up to five witnesses. The SENDIST is not empowered to order compensation but may, amongst other things, order training for staff, guidance for staff, changes to policies, practices and procedures, the admission of a disabled child to an independent school and a replacement trip or additional tuition for a disabled child who has missed out on a school experience.
