Here, explain the meaning of the word disability, the types of discrimination and what that can mean for your autistic child in a primary, secondary or local authority nursery school in England, Scotland and Wales.
We also look at types of discrimination and the schools duty to make reasonable adjustments for your child.
The meaning of ‘disability’
The Equality Act 2010 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.”
Mental impairments include autism and most autistic people are likely to fit this description, but you do not have to have a diagnosis to be considered a disabled person.
Detailed information is available in the Equality Act 2010 guidance.
What is covered by the Equality Act
A school must not discriminate against a disabled pupil in relation to:
- how education is provided
- any other disadvantage, denial of opportunity or choice.
How education is provided includes:
- school activities, such as extra-curricular and leisure activities, afterschool and homework clubs, sports activities and school trips
- assessments and internal exams
- behaviour and discipline
- school facilities, including libraries and IT.
It’s also unlawful for a school to harass or victimise a pupil, their parent, sibling or anyone else that has or is thought to have made or helped with a complaint about discrimination.
While schools have responsibility towards disabled pupils for internal exams, it is also unlawful for general qualification bodies to discriminate against students taking formal examinations.
It’s important to remember that the Act says that certain impairments are not deemed to be a disability. One of these impairments is a ‘tendency to physical or sexual abuse of other persons’.
Your child may be excluded from school for being violent towards others and, while you know this is because of their autism and unmet needs, the school can argue that the tendency to physical abuse of others is not regarded as an impairment for the purposes of the Equality Act.
Further information and advice is available from the Equality Advisory Support Service.
Types of discrimination
Direct discrimination is when a disabled person is treated less favourably than others.
It can also be discrimination based on association, such as treating a pupil less favourably because of their association with a disabled person or discrimination based on perception for example treating a pupil less favourably because they’re mistakenly thought to be disabled.
- A disabled pupil is excluded from a school trip because the school believes that they won’t be able to join in the activities. Or, no attempt is made to make activities accessible.
- Excluding a pupil because they are autistic or having an admissions policy not to admit children on the autism spectrum.
Direct discrimination will always be unlawful. However, there are exceptions eg some schools are allowed to select pupils based on ability or aptitude.
Indirect discrimination is when a school policy or practice is applied in the same way to everyone but puts a disabled pupil at a disadvantage. That is unless it can be justified as beign a proportionate means of achieving a legititmate aim, such as the health, safety and welfare of pupils. For example:
- A school has a policy stating that pupils who break the school rules on three occasions, will automatically be given a detention. This could disadvantage some disabled pupils, including autistic children and young people, who may be more likely to break the school rules. Rigid application of this policy is likely to amount to indirect disability discrimination.
Discrimination arising from disability
This is if a disabled person is treated unfavourably because of something to do with their disability and the treatment can’t be justified. Justification for the treatment might be a proportionate means of achieving a legitimate aim, or if the person who discriminates did not know and could not have reasonably been expected to know that the person had a disability. For example:
- An autistic pupil is excluded for flapping his arms at a supply teacher. The teacher was alarmed by what he perceived to be threatening behaviour. The pupil had flapped his arms as the supply teacher had told him that he could not sit in his normal seat because it wasn’t appropriate for the activity the teacher had planned. This upset the pupil and caused him to flap his arms in an agitated way. The pupil always sat in the same seat and this was recognised as a reasonable adjustment for his autism by his usual class teacher. Since the pupil’s reaction was connected to his disability, the exclusion would be discrimination arising from disability. Because the school had not advised the supply teacher of the reasonable adjustment, the school would be unlikely to be able to justify the discrimination and therefore it would be unlawful.
- Not allowing a disabled pupil to attend school full-time because the school doesn't have the resources to provide the pupil with the support he requires would be discrimination arising from disability, unless it can be justified.
- A disabled pupil who is not allowed to have a school meal because they become agitated and upset whilst queuing and is asked to bring in a packed lunch and to eat it separately, away from her friends is unfavourable treatment if their behaviour in the queue is a result of her disability
Schools have a duty to make reasonable adjustments to avoid putting disabled pupils at a substantial disadvantage to non-disabled peers.
This applies to:
- provisions, criteria and practices eg school policies
- auxiliary aids and services eg supportive equipment or a member of staff.
Examples of reasonable adjustments for an autistic pupil might be to:
- use a ‘fiddle’ toy or computer software to improve learning. Wear ear defenders or a slightly different piece of uniform to accommodate sensory sensitivities
- slightly different start and finish times to lessons so that autistic pupils can avoid busy and crowded corridors
- have support or make alternative arrangements for assemblies, school plays and sports days
- have a ‘quiet’ area, or separate work station
- consider alternative school trips to those previously arranged and provide additional assistance to enable the disabled pupil to attend. Allow the pupil to attend for just part of the trip.
There may be many other adjustments that need to be made for a pupil. Whatever reasonable adjustments the school makes, it mustn't charge the parent for doing so.
When considering reasonable adjustments schools should consider:
- Is the pupil at a substantial disadvantage without it? eg falling behind with schoolwork.
- Could this be avoided? eg with one-to-one support or specialist teaching.
- Is it reasonable for the school to take these steps?
The term ‘reasonable’ is not defined in the Act, but things that are likely to be taken into account are the:
- extent to which the disadvantage would be overcome
- extent the pupil is supported through SEN or ASN legislation
- resources the school has, and the costs and practicality of making the adjustment
- extent to which the disabled pupil will suffer if the reasonable adjustment is not made
- health and safety requirements
- need to maintain academic and other standards
- interests of other pupils and prospective pupils.
When making reasonable adjustments, responsible bodies do not have to alter or remove physical features of the school, but they have they have a general duty to plan for better access for disabled pupils.
You can ask for a copy of your responsible body’s accessibility strategy to find out more.
Disability and special educational needs (SEN) or additional support needs (ASN)
Some disabled pupils may also have SEN or ASN, and similarly a child may have SEN or ASN, but not be disabled according to the Equality Act. The disability discrimination duties are not intended to replace those which provide extra help in school. They should work alongside each other to ensure support is provided for pupils when necessary.
What parents of autistic children can do about discrimination
If you think your child has been discriminated against you can:
A tribunal may order remedies such as:
- a letter of apology
- staff training
- changes to policies and procedures
- additional education for a pupil who has missed some learning
- an additional school trip for a pupil who has missed out.
Further help from our charity
Further help for parents trying to obtain an appropriate education for their child is available from our Education Rights Service
Technical Guidance for Schools in England - Equality and Human Rights Commission.
Technical Guidance for Schools in Scotland - Equlity and Human Rights Commission.
What Equality Law Means for You as an Education Provider in Wales - Equality and Human Rights Commission.
The Equality Act 2010 and schools - Department for Education.
Last reviewed: 30 November 2016.