Education: disability discrimination in schools (England and Wales)

This page gives advice on disability discrimination in all types of schools including maintained (or community), voluntary, non-maintained, independent (or private) schools and city academies.

The law covering disability issues is complex and the terms used sometimes vague. This information sheet attempts to explain the terms used in the law and give guidance about what they mean in practice.

Meaning of disability

The Disability Discrimination Act (DDA) describes a disabled person as someone who has:

"a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities".

The following definitions of each of the terms used in this description offer guidance to help determine whether a person is disabled or not.

Physical impairment - includes sensory difficulties such as visual or hearing impairments.

Mental impairment - includes learning difficulties, autism, dyslexia, speech and language difficulties, attention deficit hyperactivity disorder (ADHD).   

Substantial - means more than minor or trivial, but it may helpfully be thought of as meaning 'having some substance'.

Long-term includes those who have an impairment that:

• has lasted 12 months or more
• is likely to last 12 months or more.

So while an autism spectrum disorder (ASD) is a lifelong condition, impairments such as a broken leg, which would be expected to heal in less than a year, would not be covered.

Normal day-to-day activities - activities that people carry out often and regularly such as:

• mobility (eg, moving around, getting to/from school, moving about the school and/or going on school visits)
• manual dexterity (eg, holding a pen pencil or book, using tools in design and technology, playing a musical instrument, throwing and catching a ball)
• physical co-ordination (eg, washing or dressing, taking part in games and physical education)
• continence (eg, adult support for toileting)
• ability to lift, carry or move everyday objects (eg, carrying a full school bag or other fairly heavy items)
• using speech, hearing or eyesight (eg, communicating with others or understanding what others are saying; hearing what class teacher is saying: ability to see clearly (with spectacles/contact lenses where necessary), including any visual presentations in the classroom)
• memory or ability to concentrate, learn or understand (eg, work in school including reading, writing, number work or understanding information)
• understanding the risk of physical danger inability to recognise danger (eg, when jumping from a height, touching hot objects or crossing roads).

Since September 2002 it has been against the law for schools to discriminate against pupils for a reason related to their disability.

The discrimination may be in any area of education, for example in:

• admissions
• exclusions
• school trips
• access to the curriculum
• teaching and learning
• school sports
• school meals.

In effect, all aspects of a pupil's education are covered by the DDA.

Meaning of discrimination

In education, unlawful discrimination against a disabled pupil can occur in two ways:

• by treating the disabled pupil or prospective pupil less favourably
• by failing to make reasonable adjustments to admission arrangements and other education services.

The terms less favourable treatment and making reasonable adjustments are explained in greater detail below.

Less favourable treatment

A school may be discriminating if it treats a disabled pupil less favourably than another for a reason related to his/her disability and the treatment cannot be justified.

Examples of how a pupil may be treated less favourably treatment might be if he or she has been refused admission to a school, or not allowed to go on a school trip because of his/her disability.

There are three tests to determine whether a child has been treated less favourably:

• is the less favourale treatment for a reason that is related to the child's disability?
• is it less favourable treatment than another pupil to whom the above reason does not apply would get?
• is it less favourable treatment that cannot be justified?

If the answer to all the above questions is yes, then it is likely to be unlawful discrimination.

Justifying less favourable treatment

Even though a pupil may have been treated less favourably than other pupils, the discrimination will not be illegal if it was justified in the circumstances. The school would need to show that there was a particular reason why they treated the disabled child in that way and that the reason or reasons were significant enough to justify discrimination.

Example:

A pupil with autism and sensory difficulties becomes very anxious when the fire alarm goes off in school. He stands with his hands covering his ears and is unable to move. The teacher tells the pupil to leave the building, but the pupil is frozen to the spot. The teacher shouts at the pupil and the situation escalates to a point where the pupil lashes out at the teacher. The pupil is given a two-day exclusion for assaulting the teacher.

The school may say that the less favourable treatment in this case was justified to keep order and discipline in the school and that the incident (hitting the teacher) was significant enough to justify exclusion.

Another way that less favourable treatment may be justified is where a school operates a permitted form of selection for admission purposes. For example:

• grammar schools may select intake of pupils' on academic ability
• specialist schools may give priority to pupils who show a particular talent for the subject in which the school specialises
• independent schools may select on grounds of aptitude and ability.

Reasonable adjustments

Failure to make reasonable adjustments to ensure that disabled and non-disabled pupils have equal access in admission arrangements and to education services is unlawful. The reasonable adjustments duty requires schools:

• to think ahead
• anticipate the barriers that disabled pupils may face
• remove or minimise them before a disabled pupil is placed at a substantial disadvantage. 

Reasonable adjustments may need to be made in admissions, exclusions and in fact every aspect of the life of the school. 

Example:

Returning to the example where the boy with autism became anxious when the fire alarm sounded, there may have been reasonable adjustments that the school could have made to prevent the incident described happening in the first place.

For example, staff at the school could have been trained about autism, strategies to avoid difficulties and how to overcome difficulties if they do arise. The pupil could have been given training for social situations and strategies for coping when the fire alarm is raised.

As with less favourable treatment, there are three tests to be met before the reasonable adjustments discrimination may apply:

• has the school failed to make reasonable adjustments?
• as a consequence of this, has the disabled pupil/student been placed at a substantial disadvantage in comparison with his or her non-disabled peers?
• is it a failure that cannot be justified?

Again, if the answer to these questions is yes, then it is likely to be unlawful discrimination.

Early years

All providers of early years services are covered by the DDA and so have a duty not to discriminate against disabled children in both the education and the day care or other services that they provide.

Responsible bodies

The law covering disability discrimination talks about responsible bodies that have a legal duty to ensure that pupils, or prospective pupils, are not discriminated against. The responsible body for each kind of school is as follows.

Type of school               Responsible body
Maintained School         Governing Body
Maintained Nursery       Local Authority
Pupil Referral Unit          Local Authority
Independent School         Owner
Non-maintained School    Owner

In general it is the governing body of a maintained school that is the responsible body for ensuring that disabled pupils in the school are not discriminated against.

The governing body needs to ensure that everyone in the school, staff or volunteer, is aware of the rights owed to disabled pupils. To avoid discrimination against any disabled pupil, all staff need to implement the duties in relation to their area of responsibility. 

This means that in the classroom, the class teacher is responsible. On a school trip the responsibility would fall to the member of staff planning the trip. Ancillary staff have a responsibility at lunch and break times and those with curriculum responsibilities would have responsibility in their particular area of curriculum. The head teacher of the school would have responsibility across the whole school.

Informing the school and confidentiality

The DDA says that if a responsible body treats a pupil less favourably or fails to make reasonable adjustments, it is not discrimination if, at the time, they did not know and could not reasonably be expected to know that the pupil was disabled.

Schools therefore need to know that a pupil is disabled and the nature of the pupil's disability. Although the reasonable adjustments duty applies generally, the school will need to know how to apply any specific arrangements. If a school has not been told about a child's disability and a claim is made against them for disability discrimination, they may be able to defend their actions, or inaction, because they did not know.

Parents, or the pupil, can ask the school to keep the nature or existence of the disability confidential. Such a request may limit what the school can do by way of making reasonable adjustments and it may be necessary to explore any possible alternative steps that might be taken to minimise any disadvantage to the pupil.

Local authority duties

Local authorities (LAs) also have a duty not to discriminate against disabled pupils or prospective pupils. In effect, LAs come under the schools' duties for schools they are responsible for (that is, maintained or community and some voluntary schools). They also have duties in relation to home tuition services, home to school transport, etc.

Authorities should ensure that all policies, admission procedures and any services they provide to pupils do not treat disabled pupils less favourably.

Examinations

From September 2007 it is unlawful for General Qualification Bodies (GQB) to discriminate against students taking exams such as GCSEs, A levels, etc.  There is a duty to make reasonable adjustments, which may involve, for example, allowing extra time to sit an exam or allowing the use of a reader or a scribe.

The duty to make reasonable adjustments does not apply to competence standards. A competence standard is any standard applied by the GQB to determine whether a person has a particular level of competence or skill.

SATs exams are likely to be covered by the school's general duties under the DDA.

Other disability duties

Additional disability discrimination duties were introduced in 2005 and all public authorities now have a general duty to promote disability equality. Schools and LAs also have a specific duty to prepare and publish a Disability Equality Scheme by:

• December 2006; secondary schools in England 
• December 2007; primary and special schools in England
• April 2007; schools in Wales

These schemes must show how the schools intend to promote disability equality.

LAs and schools are also required to improve access to school education for disabled pupils over time. The strategies and plans must show how access to local schools will be increased by:

• increasing access to the curriculum for disabled pupils
• making improvements to the physical environment of the school to increase access to education and associated services
• making written information accessible in a range of different ways for disabled pupils, where it is provided in writing for pupils who are not disabled.

These duties will not bring new rights but they will mean that schools and LAs must be more proactive. Schools and LAs need to:

• promote equality of opportunity between disabled people and other people
• eliminate discrimination that is unlawful under the DDA
• eliminate harassment of disabled people that is related to their disability
• promote positive attitudes towards disabled people
• encourage participation by disabled people in public life
• take steps to meet disabled people's needs, even if this requires more favourable treatment.

Disability and special educational needs

Some disabled pupils may also have special educational needs. A pupil with a disability has special educational needs (SEN) if they need special educational provision to be made for them to enable them to access education. Similarly a child may have SEN, but may not be disabled according to the DDA.

The disability discrimination duty is not intended to replace provision that should be made through the SEN process. The disability discrimination duties provide protection from discrimination and improvements to increase access to education over time. The SEN framework provides auxiliary aids and services, such as teaching assistants, visual aids, etc that a disabled pupil may need. Together the duties are designed to ensure access to education and the inclusion of disabled pupils in every aspect of school life. 

What parents can do

If you as a parent believe your child has been discriminated against you can:

• ask to meet with the head to discuss the situation
• talk to the responsible body (see above)
• ask to see, and then follow, the school's written complaints procedure
• ask to meet the  local authority
• make a claim for unlawful discrimination through the SEN and Disability Tribunal (SENDIST) in England or the SEN Tribunal Wales (SENTW) in Wales.

You need to follow the steps in the order given above.

Complaints to the disability tribunal

Claims of disability discrimination should be made no later than six months after the incident occurred, or if there has been a series of incidents, six months after the latest incident.

Claims about admissions or permanent exclusions cannot be made to the Tribunal. These will be heard by admission appeal panels and independent appeal panels (see below).

Proceedings are held in private by a tribunal panel of three people. The chair person of the panel is a lawyer and the other two people on the panel will have experience and knowledge of disabled children.

If the tribunal finds that a school has discriminated unlawfully against a disabled pupil it cannot award financial compensation, but may order some or all of the following:

• training or guidance for school staff
• the involvement of a local authority equal opportunities officer in the school
• changes to policy, practices and procedures
• a replacement trip or additional tuition for a disabled child who has missed out on a school experience
• the relocation of, for instance, the school library, to make it more accessible (short of requiring physical adjustments to the school building)
• admission of a disabled child to an independent school
• a written apology.

More information about this type of appeal can be obtained from SENDIST or SENTW, details of which are given at the bottom of this page.

Admission appeal panels

Admission appeal panels will hear claims of discrimination in relation to refusal to admit a disabled pupil to a local authority maintained or voluntary school or to a city academy. Disability discrimination claims for refusal to admit a disabled pupil to any other type of school should be made to SENDIST or SENTW.

The claim must be made in writing. There is usually a time limit for making an appeal, which should not be less than ten working days from the date of the letter informing parents that their application for a place at their preferred school was unsuccessful.

The admission appeal panel must consider whether the pupil is disabled within the meaning of the DDA and whether there has been discrimination within the meaning of the Act. Admission appeal panels can order that a pupil is admitted.

Further information about admission appeals can be obtained from the Department for Education and Skills (DfES) or the National Assembly for Wales (details at the bottom of this page). 

Independent appeal panels

Independent appeal panels hear claims of unlawful discrimination in relation to permanent exclusions from LA-maintained and voluntary schools and from city academies. Any claim in relation to permanent exclusion from other types of schools, or fixed-term exclusions from all types schools are made to SENDIST or SENTW.

Claims of unlawful discrimination to exclusion panels are made and heard in the same way as other appeals against a school's decision to exclude a pupil. Parents have 15 school days from the day they are informed of the exclusion in which to lodge an appeal, and the panel should meet within 15 school days of the appeal being lodged.

An independent appeal panel can order that a pupil is re-instated.

Further information about independent appeal panels and exclusions can be found in The National Autistic Society (NAS) information sheet Permanent exclusion (England and Wales), available online at www.autism.org.uk/a-z

Useful documents and reading

Disability Rights Commission. A guide for parents.

Disability Rights Commission. Education: how do I make a claim?

Disability Rights Commission. Code of practice (schools).

Special educational needs and disability tribunal (SENDIST). Disability discrimination in schools: how to make a claim.

SEN Tribunal Wales (SENTW). Disability discrimination in schools: how to make a claim.

Department for Education and Skills (DfES). Admission appeals code of practice. Ref DfES/0030/2003

School admission appeals the National Assembly for Wales code of practice

Department for Education and Skills (DfES). Improving behaviour and attendance: guidance on exclusion from schools and pupil referral units. Ref 02017-2006BKT-EN

National Assembly for Wales. Exclusions from schools and pupil referral units: amendments.

Where to obtain these

Disability Rights Commission Helpline: 0845 7622633
Website: www.drc.org.uk

SENDIST Discrimination Helpline: 020 7925 5750
Website: www.sendist.gov.uk

SENTW Discrimination Helpline: 01597 829800
Website: www.sentw.gov.uk

DfES Publications
Tel: 0845 60 222 60
Website: www.dfes.gov.uk/publications or www.teachernet.gov.uk/publications

The National Assembly for Wales - 029 2082 3683
Website: new.wales.gov.uk/publications

Services from The National Autistic Society

Further help for parents trying to obtain an appropriate education for their child is available from the NAS Education Advice Line.

Tel: 0845 070 4002
www.autism.org.uk/advocacy

For general help and information about autism and related issues, please contact the NAS Autism Helpline:

Tel: 0845 070 4004
Email: autismhelpline@nas.org.uk
Open Monday-Friday, 10am-4pm

June 2007