Here we explain disability discrimination for parents of autistic children in a primary, secondary or local authority nursery school in England, Scotland and Wales. We have a separate resource for disability discrimination in schools (Northern Ireland) where the law is different.

We discuss:

As we are discussing legislation we will occasionally use ‘disabled’ as a generic umbrella term that includes autism.

The meaning of ‘disability’

The Equality Act 2010 Guidance for schools states that a person has a disability if:

“they have a physical or mental impairment which has a long term and substantial adverse effect on their ability to carry out normal day-to-day activities.”

‘Mental impairments’ include autism, a lifelong disability that affects how people perceive the world and interact with others. Most autistic people are likely to fit this description, but a person does not have to have a diagnosis to be considered disabled.

What is covered by the Equality Act 

A school must not discriminate against a disabled pupil in relation to: 

  • admissions
  • how education is provided
  • exclusion
  • 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
  • managing behaviour and discipline
  • school facilities, including libraries and IT. 

While schools have responsibility towards disabled pupils for internal exams, it is also unlawful for general qualification bodies to discriminate against pupils taking formal examinations. There are various ways in which autistic pupils can be supported with exams, such as additional time, a scribe or assistive technology.

Further information can be found in our exam guidance.

Types of discrimination

There are several types of disability discrimination that your child may experience at school:

Direct

Direct discrimination is when a person is treated less favourably than others because of their disability. 

It can also be discrimination based on association, such as treating a pupil less favourably because of their association with an autistic person or discrimination based on perception, for example treating a pupil less favourably because they’re mistakenly thought to be autistic.

Example:

An autistic pupil is excluded from a school trip because the school believes that they won’t be able to join in the activities. 

Direct discrimination will always be unlawful. However, some schools such as grammar schools are allowed to select pupils based on ability or aptitude, provided that they comply with their duty to make reasonable adjustments for disabled pupils during the assessment process..

Indirect 

Indirect disability discrimination is when a school policy or practice is applied in the same way to everyone but puts pupils with a disability at a disadvantage. That is unless it can be justified as being a proportionate means of achieving a legitimate aim such as the health, safety and welfare of pupils. 

Example:

A school has a policy that if a pupil breaks the school rules three times, he or she will automatically be given a fixed period exclusion. Autistic pupils may break rules without realising it or due to distress as a result of their unmet needs. Applying this policy without any flexibility is probably indirect disability discrimination. 

Discrimination arising from disability 

Discrimination arising from disability occurs if a person is treated unfavourably because of something to do with their disability and the response – such as excluding them from school – cannot be justified as being a ‘proportionate means of achieving a legitimate aim’.

Examples of legitimate aims include to ensure the safety of pupils and staff, but the school would also need to show that their response is proportionate. As exclusion can lead to social isolation, increased anxiety and depression, parents might argue that a more proportionate response would be to:

  • have understanding of autism
  • be empathetic 
  • ensure that the child’s needs are met
  • provide appropriate support
  • work on reducing their anxieties
  • implement effective strategies and approaches
  • make the necessary tailored reasonable adjustments

It would not be discrimination if the school did not know that the pupil was disabled.

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 was distressed and had flapped his arms because the supply teacher had told him that they were doing an activity which meant he could not sit in his usual seat. Since the pupil’s reaction was connected to being autistic, the exclusion would be discrimination arising from disability. The school had not advised the supply teacher of the reasonable adjustment (allowing the pupil to always sit in the same seat), so they would be unlikely to be able to justify the discrimination and therefore it would be unlawful.

Not allowing an autistic 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. 

Reasonable adjustments

Reasonable adjustments are changes made to ensure disabled pupils can participate in their education and enjoy the other facilities that the school provides. Schools have a duty to make reasonable adjustments to avoid putting disabled at a substantial disadvantage compared to non-disabled pupils.

This applies to: 
  • provisions, criteria and practices - the way in which a school operates on a daily basis, for example an exclusion or discipline policy.
  • physical features, such as entrances and exits, toilets, lighting, flooring and furniture.
  • auxiliary aids and services, for example supportive equipment or a member of staff. 

Examples of reasonable adjustments for your child might be to allow them to:

  • wear ear defenders or a slightly different piece of uniform to accommodate sensory sensitivities
  • start and finish lessons at slightly different times so that your child can avoid busy and crowded corridors
  • have support, or make alternative arrangements, for assemblies, school plays and sports days
  • have access to a ‘quiet’ area or separate work station
  • arrange support to enable your child to take part in school trips. 

There may be many other adjustments that need to be made for your child. It is unlawful for a school to charge you money for making a reasonable adjustment.

When considering reasonable adjustments, schools should consider whether:

  • your child is at a substantial disadvantage, for example are they falling behind with school work
  • this disadvantage could be avoided, for example by one-to-one support or specialist teaching
  • it is reasonable to take these steps?

A recent Tribunal ruling means that schools/colleges must make sure they have made appropriate reasonable adjustments for autistic students, or those with other disabilities, aged under 18 before they can exclude them. 

A loophole in the Equality Act meant schools didn’t have to make reasonable adjustments for disabled children when they had a 'tendency to physical abuse' - even when that was caused by a lack of appropriate support. However, this loophole no longer applies and allowances should be made for behaviour that is due to a pupil being autistic and their needs not being met. Schools need to ensure that reasonable adjustments are made to allow students to fully participate in their education.

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 to which your child is supported through SEN or ASN legislation
  • resources the school has, and the costs and practicality of making the adjustment
  • extent to which your child 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, schools do not have to alter or remove physical features of the school, but they have a general duty to plan for better access for your child. 

You can ask for a copy of your school’s accessibility plan to find out more.

Harassment and victimisation

If you have made a complaint about discrimination, it is unlawful for a school to harass or victimise you, your child or anyone else who has helped with the complaint.

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.

Our Education Rights Service provides impartial and confidential information and support to families on school education rights and entitlements

What parents of autistic children can do about discrimination

If you think your child has been discriminated against you can:

  • ask to meet with the head teacher to discuss the situation
  • talk to the governing body or academy trust of the school 
  • ask to see, and then follow, the school’s written complaints procedure
  • contact the Equality Advisory and Support Service 
  • make a claim for unlawful discrimination to the body responsible in your nation. 

In England you can make a claim to the First-tier Tribunal for Special Educational Needs and Disability (SEND). If you are making appealing an exclusion you can read our Navigating exclusion appeals to the First-tier (SEND) tribunal guide.

In Wales contact the Special Educational Needs Tribunal for Wales (SENTW).

In Scotland you can make a claim to to the First-tier Tribunal for Scotland Health and Education Chamber (Additional Support Needs).

Claims of disability discrimination should be made no later than six months after the incident or latest incident occurred. 

 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

Useful reading

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: 31 January 2019