Here, you'll find advice on disability discrimination in all types of schools in England and Wales, including those managed by local authorities and independent and grant-aided schools.

The law covering disability issues is complex and the terms used are sometimes vague. We attempt to explain the terms used in the law and give guidance about what they mean in practice.

The meaning of 'disability'

The Equality Act 2010 describes a disabled person like this:

"A person (P) has a disability if –

(a) P has a physical or mental impairment, and
(b) The impairment has a substantial and long-term adverse effect on P’s 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 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 - these are not listed in the Equality Act, making the definition of disability less restrictive for disabled pupils to meet, but they will include 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).

 

Unlawful discrimination can apply to every aspect of school life. It covers all school activities, such as:

  • extra-curricular activities
  • leisure activities 
  • after-school clubs
  • homework clubs 
  • sports activities
  • school trips
  • school facilities (for example, libraries and IT facilities).

The meaning of 'discrimination'

Unlawful discrimination against a disabled pupil can occur in several ways:

  • direct discrimination
  • indirect discrimination
  • discrimination arising from disability
  • harassment.

Direct discrimination
Direct discrimination is when a school treats a disabled pupil less favourably than a non-disabled pupil. An example might be a school refusing to admit disabled pupils.

Direct discrimination is unlawful whether it is intended or not and in spite of the motive. There is no justification for this type of discrimination. However, it is not discrimination to treat a disabled pupil more favourably than a non-disabled pupil because of their disability.

Indirect discrimination  
Indirect discrimination might happen when a school has a policy or rule that puts, or would put disabled pupils at a disadvantage. An example might be a school having a rule that all pupils must be able to make their own way to and from after school clubs independently.

Schools also have a duty to make ‘reasonable adjustments’ (see below) for disabled pupils – in effect making an exception to the rule if the rule would put the disabled pupil at a disadvantage.

Discrimination arising from disability
Discrimination arising from disability might happen when a school treats a disabled pupil unfavourably because of something that is a consequence of their disability. An example might be a school refusing to allow a pupil with attention deficit hyperactivity disorder (ADHD) to go on a class visit to the theatre, because that pupil has attention difficulties and may disrupt the performance. The pupil’s attention difficulties are a consequence of his disability.

Harassment
Harassment occurs when a member of school staff engages in unwanted conduct that either:

  • violates a pupil’s dignity or
  • creates an intimidating, hostile, degrading, humiliating or offensive environment for a pupil.

 

An example might be a teacher shouting at a pupil for failing to carry out an instruction because, as part of their autism, the pupil has receptive language difficulties and may have either misunderstood what has been asked, or needs more time to process the instruction.

Less favourable treatment

To establish whether there has been ‘less favourable’ treatment, the school must compare how it has treated other pupils, or would have treated them in a similar situation. Even though a pupil may have been treated less favourably than other pupils, the discrimination may 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 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

Schools have a legal duty to take positive steps to make sure that pupils with disabilities can participate in all aspects of school life. 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, it is likely to be unlawful discrimination.

Early years

All providers of early years services are covered by the Equality Act 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 Equality Act 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
Academies and free schools       Owner
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 Equality Act 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 didn’t 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. Schools are expected to take steps to find out if a pupil has a disability. Although the reasonable adjustments duty applies generally, the school will need to know how to apply and 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 didn’t know.

Parents, or the pupils, 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

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 Equality Act.


 

What parents can do

If you believe that your child has been discriminated against you can:

 

  • ask to meet with the head to discuss the situation
  • talk to the responsible body (see 'Responsible bodies') 
  • 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.

 

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 (see 'Useful documents and reading').

Admission Appeal Panels

Claims about admissions to state maintained schools, academies and free schools should be made to Admission Appeal Panels.

Admission authorities must not refuse to admit a child to a school on the basis of disability.  If you believe that your application for a school place has been dealt differently to others because of you child’s disability, you may be able to make a claim for disability discrimination and can include this as part of your admission appeal.

All appeals must be made in writing and submitted at least 20 school days from the date you were informed that your application was unsuccessful.  The hearing should be held within 40 school days of the deadline for lodging the appeal.

The appeal panel will consider whether the admissions arrangements are lawful and correctly applied in your child’s case.  Admission appeal panels can order that a pupil is admitted to a school.

Further information about admission appeals can obtained from the Department for Education, or National Assembly for Wales – details at the end of this sheet.

Appeals about permanent exclusion

In Wales, claims in relation to permanent exclusions must be considered by the Independent Appeal Panel, rather than the disability tribunal.

In England, the disability tribunal can hear claims in relation to permanent exclusions. 

Further information about permanent exclusions in Wales and England and the relevant appeal process can be found in the NAS information sheets:
Permanent exclusion (Wales) - www.autism.org.uk/29649
Permanent exclusion (England) - www.autism.org.uk/19717


 


 

Useful documents and reading

Tribunals Service. How to claim against disability discrimination in schools: a guide for parents (SEND4).
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/send04-eng.pdf

SEN Tribunal Wales (SENTW). Disability discrimination in schools: how to make a claim.
http://wales.gov.uk/subsites/sentw/publications/disabilitydiscriminationforms/howtomakeclaimen.pdf?lang=en 

Where to get these
Tribunal Discrimination Helpline: 01325 392760
Website: https://www.gov.uk/government/organisations/ministry-of-justice

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

Other contacts

Department for Education: 0370 000 2288
Website: www.education.gov.uk

National Assembly for Wales: 0845 010 5500
Website: www.assemblywales.org

Advice on discrimination in schools can also be obtained from

Equality Advisory Support Service Helpline:
0808 800 0082
Website: www.equalityadvisoryservice.com

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 Rights Service on 0808 800 4102.

For general help and information about autism and related issues, contact our Autism Helpline on 0808 800 4104.

You will find more useful information about education and subjects such as individual education plans, placing requests and exclusion at www.autism.org.uk/a-z  

 

Last updated: May 2013