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.”
A school therefore mustn’t discriminate against a disabled pupil in relation to:
- admissions
- how their education is provided
- exclusion
- any other disadvantage, denial of opportunity or choice
That provision of education includes all school activities, spanning:
- assessments and internal exams
- behaviour/discipline management
- use of school facilities
- extracurricular and leisure activities
- after-school and homework clubs
- sports activities
- school trips
Supporting pupils in exams
Schools have a responsibility for ensuring that disabled pupils can access internal examinations. It’s also unlawful for qualification bodies to discriminate against pupils taking formal examinations.
As such, there are various ways we can support pupils in their exams, such as:
- granting them additional time
- making a scribe available
- enabling them to use assistive technology
Five types of disability discrimination in schools
Children may experience five types of disability discrimination in schools:
- direct disability discrimination
- indirect disability discrimination
- discrimination arising from disability
- failure to make reasonable adjustments
- harassment and victimisation.
Direct discrimination
Direct discrimination occurs when we treat a person less favourably than others because of their disability. This can be a form of discrimination based on perception. For example, you might treat a pupil less favourably because you mistakenly think they’re disabled.
For instance, you might exclude an autistic pupil from a school trip because you believe that they won’t be able to join in the activities.
Direct discrimination will always be unlawful. Those schools with a selective admissions policy, such as grammar schools, can select pupils based on ability or aptitude. This is so long as they comply with their duty to make reasonable adjustments for disabled pupils during the assessment process.
Indirect disability discrimination in schools
Indirect disability discrimination in schools arises when you apply a policy or practice in the same way to everyone, but it puts pupils with a disability at a disadvantage.
The only exception is when the policy or practice can be justified as a proportionate means of achieving a legitimate aim. This might be the health, safety and welfare of pupils, for example.
For example, a school may operate a ‘three strikes’ policy which states that if a pupil breaks school rules three times, it will automatically suspend them. Some disabled pupils may break rules without realising, or due to distress as a result of having their needs unmet.
Applying such policies without any flexibility may well lead to indirect disability discrimination.
Legitimate aims
Discrimination arising from disability will occur if you treat a person unfavourably because of something to do with their disability, and if the response – such as exclusion – can’t be justified as a ‘proportionate means of achieving a legitimate aim’.
‘Legitimate aims’ in this instance may include ensuring the safety of pupils and staff. However, the school would need to demonstrate that their response is proportionate.
Since exclusion can lead to social isolation, increased anxiety and depression, the parents of a disabled pupil might well argue that a more proportionate response would be to:
- develop a better understanding of the child’s disability
- demonstrate empathy
- ensure the school meet the child’s needs
The school could also provide appropriate support, work on reducing the pupil’s anxieties and make any necessary reasonable adjustments. It wouldn’t constitute discrimination if the school was unaware that the pupil was disabled.
For example, let’s imagine you exclude a disabled pupil from the classroom for flapping his arms at a supply teacher. The teacher was alarmed by what they perceived to be threatening behaviour.
It then emerges that the pupil was distressed. He flapped his arms because the supply teacher told him they were about to do an activity which meant he couldn’t sit in his usual seat.
Since the pupil’s reaction was connected to him being disabled, exclusion in this instance would amount to discrimination arising from the pupil’s disability.
Because the school hadn’t advised the supply teacher of a reasonable adjustment made for the pupil – allowing him to always sit in the same seat – it’s unlikely that the discrimination could be justified. It would therefore be unlawful.
Addressing disadvantage
Reasonable adjustments are changes you make to ensure that disabled pupils can participate in their education and enjoy all the facilities that a school provides.
Schools have a duty to make reasonable adjustments to avoid putting disabled pupils at a substantial disadvantage compared to their non-disabled peers.
This applies to all provisions, criteria and practices, and indeed every aspect of a school’s daily operations. This includes:
- exclusion and discipline policies
- physical features (such as entrances and exits)
- toilets
- lighting
- flooring and furniture
- auxiliary aids and services (such as the provision of supportive equipment or specialist staff)
Reasonable adjustments for an autistic child might involve allowing them to wear ear defenders, or a slightly modified school uniform to accommodate sensory sensitivities.
They may be able to start and finish lessons at slightly different times in order to avoid busy and crowded corridors, or access alternative arrangements during assemblies, sports days and other whole school events.
Other pupils may require the use of a ‘quiet’ area or separate work station throughout the day, and many disabled pupils will need some form of support if they’re to fully take part in school trips. It’s unlawful for schools to charge money when making a reasonable adjustment.
Reasonable adjustments
When contemplating reasonable adjustments, schools should consider whether pupils are at a substantial disadvantage. Are they falling behind with schoolwork? Could you address this disadvantage by arranging for one-to-one support or specialist teaching? Would taking these steps be reasonable?
Previously, a loophole in the Equality Act meant that schools didn’t have to make reasonable adjustments for disabled children when they had a ‘tendency to physical abuse’. This was even if a lack of appropriate support caused the issue in question.
This loophole no longer applies, however. This means that allowances must be made for behaviours stemming from disabled pupils’ needs not being met.
Defining ‘reasonable’
The Act doesn’t actually define the term ‘reasonable’. However, there are a number of factors that schools may well need to take into account.
Among these are the extent to which a reasonable adjustment can overcome a form of disadvantage, and the level to which a pupil is currently being supported through existing SEN legislation.
Weigh these against:
- the resources your school currently has
- the costs and practicality of making the adjustment
- any ways in which the pupil will suffer if you don’t make the reasonable adjustment
To that, you can also add the need to:
- consider health and safety requirements
- maintain academic standards
- observe the interests of other current and prospective pupils
To make reasonable adjustments, schools won’t necessarily have to alter or remove any physical aspects of their premises, but they absolutely have a general duty to plan better access for their pupils wherever possible.
Schools have a statutory duty to provide copies of their accessibility plan to parents and other stakeholders upon request, and should look to update their plans every three years.
Lesley Mifsud is head access auditor and CEO at EA Audits.
