Historically, the majority of disabled children have been educated in “special schools” excluded from their non-disabled peers. It is only in the last 30 years or so that there has been a shift towards educating disabled pupils in mainstream education.
There are, at present, a significant amount of disabled children in the UK: 1 child out of every 20 is disabled and this equates to roughly 770,000 children. Of those, only 17 per cent attend “special schools” with the remainder attending mainstream schools.
Given the high proportion of disabled children who attend mainstream schooling it is important that education providers are complying with their legal duties and ensuring that disabled pupils are as fully integrated into daily school life as is possible.
This article considers some of the duties that schools must comply with when teaching a disabled pupil and highlights the potential consequences of failing to do so.
- What is a disability?
- The general duty: schedule 20 of the EqA2010
- The specific duties: schedule 13 of the EqA2010
- What if a school fails to comply with its legal duties
What is a disability?
Before looking at the relevant legal duties it is necessary to look at what constitutes a disability. The definition of “disability” can be found in section 6 of the Equality Act 2010 (EqA) which states that: A person will be classed as having a disability if:
- They have a physical or mental impairment
- That impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
It is clear, therefore, that the term “disability” covers a wide range of both physical and mental impairments.
We will now look at some of the duties/requirements which schools must comply with. If they fail to do so then, not only do they potentially risk violating a child’s human rights, but an action can be brought against them in the County Court or the Special Educational Needs and Disability First Tier Tribunal.
The general duty: schedule 20 of the EqA2010
All schools are under a general duty to make reasonable adjustments which require them to:
- Take reasonable steps to avoid disadvantage under section 20(3) of the EqA2010 where a provision, criterion or practice of the school puts a disabled pupil at a substantial disadvantage. This duty covers the way that the school operates on a daily basis, including decisions and actions. This could be, for example, to provide information in an accessible format such as Braille
- Take reasonable steps to provide an auxiliary aid or service under section 20(5) of the EqA2010 where a disabled person would be at a substantial disadvantage without it. This duty generally means providing additional support or assistance to a disabled pupil in the form of a piece of equipment or support from a member of staff. An example of an auxiliary aid would be providing lesson information in an electronic mp3 format so visually impaired pupils can listen to them. An example of an auxiliary service would be providing a pupil who is a wheelchair user with a support assistant to push them around school.
Schools are not required to remove, alter or provide a reasonable means of avoiding a physical feature of a property where it puts a disabled person at a substantial disadvantage. Thus they do not, therefore, have to adapt the feature of an approach to, exit from or access to a building. Schools are, however, required to comply with their planning duties in preparing accessibility plans (please see below: ‘Accessibility for disabled pupils’).
Many reasonable adjustments are inexpensive and will often involve a change in practice rather than the provision of expensive pieces of equipment or additional staff.
The specific duties: schedule 13 of the EqA 2010
In addition to complying with the general duty to make reasonable adjustments, schools must also make specific adjustments for disabled pupils to give them the same level of access enjoyed by other pupils and to help them avoid substantial disadvantage.
The duty under schedule 13 of the EqA 2010 is anticipatory. This means that schools should consider, and take reasonable steps, to overcome any obvious barriers that may specifically impede those with a disability. A school may, for example, take the pre-emptive step of storing data electronically so it can be easily reproduced in large text should the need arise.
Schools are under a specific duty to make reasonable adjustments for disabled pupils in relation to:
- The provision of education i.e. in relation to disciplinary action
- Access to a benefit, facility or service.
The failure to make a reasonable adjustment Under the EqA 2010, a failure to make a reasonable adjustment cannot now be justified: the new test is that of reasonableness. Therefore, if an adjustment is reasonable, it should be made and there can be no justification for why it has not been made. A failure to make a reasonable adjustment will be an act of unlawful discrimination.
The following factors are likely to be taken into account when considering what adjustments are reasonable for a school to have to make:
- The extent to which support will be provided to the disabled pupil under Part 4 of the Education Act 1996
- The resources of the school and the availability of financial and other assistance
- The financial and other costs of making the adjustment
- The extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil
- The practicality of the adjustment
- The effect of the disability on the individual
- Health and safety requirements
- The need to maintain academic, musical, sporting and other standards
- The interests of other pupils and prospective pupils.
- Accessibility plans for physically disabled pupils
In addition to fulfilling the general and specific duties mentioned above schools must also prepare and implement a written accessibility plan in relation to pupils suffering from physical disabilities. An accessibility plan is a plan to:
- Increase the extent to which disabled pupils can participate in the curriculum
- Improve the physical environment of schools for disabled pupils to enable them to take advantage of education and benefits, facilities or services provided or offered
- Improve the delivery of information to disabled pupils, which is readily available to able-bodied pupils.
Schools must keep their accessibility plan under review, ensure that they have adequate resources to implement that plan and finally, and most importantly, put their accessibility plan into action.
What if a school fails to comply with its legal duties?
There are severe consequences for a school which fails to comply with its duties and there are two main methods of enforcement:
1. Claims brought for a breach of duty
- Should a school fail to comply with any of their duties then a claim can be brought against them under part 9 of the EqA 2010. The claim should be issued out a County Court and will be covered by the Civil Procedure Rules.
- Time limit: s118: Education cases must be brought within six months of the date of the act complained of or any other period that the county court or sheriff thinks "just and equitable".
- Remedies: s119(2): The County Court has the right to grant the following remedies:
a. Declaration of the rights and responsibilities of the parties to the claim
b. An injunction to prevent the repeating of the unlawful act in the future
c. A quashing order
d. Damages to compensate for any loss suffered
e. Interest on damages
2. Claims brought for disability discrimination
- If a school pupil or their parents believe that a school has discriminated against them/their child on the grounds of disability then their parent(s) can make a claim in the Special Educational Needs and Disability First Tier Tribunal in England or the Special Educational Needs Tribunal in Wales.
- Time Limit: paragraph 4(5) of schedule 17: the time limit for bringing a disability discrimination claim is 6 months.
- Remedies: Paragraph 5, Part 2, Schedule 17: provided that the First Tier Tribunal finds a contravention of the EqA 2010, it can make any order it sees fit having regard to the following two factors:
a. The need to reduce the adverse effect on the pupil who suffered the discrimination
b. The fact it does not have the power to order the payment of compensation.
What is clear is that schools have both moral and legal obligations to create an inclusive environment for all pupils, particularly those suffering from a disability. Schools should, where possible, aim to facilitate and enable all disabled children to have as fulfilling and rewarding a school life as their non-disabled counterparts.
If they fail to comply with their legal duties then schools are ultimately putting themselves at a risk of litigation. It is important to remember that schools play an instrumental role in preparing today’s pupils for tomorrow’s inclusive society and the legal duties which they must comply with should go some way in assisting them to do this.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.