What are your responsibilities and obligations towards pupils at your school who are disabled? Mark Blois discusses the relevant legislation and explains what you need to know and do

An increasing number of schools are finding themselves the subject of legal challenges to either independent exclusion appeals panels or Sendist allegations of discrimination against a pupil on the grounds of a disability. The law relating to disability discrimination is complex and frequently seems impenetrable, and recourse to legal advice is often recommended. Moreover, recent case law is likely to assist the schools to successfully defend more of these challenges.

Since when has disability equality law affected the education sector?

The Disability Discrimination Act (DDA) was introduced in 1995. It was the biggest step the government had taken to provide equality for the disabled. However, it was not until 2002 when the implementation of the Special Educational Needs and Disability Act 2001 was put into place that this area of law was directly applied to the education sector.

How do I know if someone is classed as disabled?

The law states under the DDA 1995 that a disabled person is someone who has a physical or mental impairment that has a substantial and long term adverse effect on his or her ability to carry out normal day-to-day activities. Unfortunately, this definition can sometimes pose more questions that it gives answers. By way of clarification, “substantial” means neither minor nor trivial, and “long term” is at least 12 months. “Ability to carry out normal day to day activities” constitutes a wide variety of functions, from the use of physical coordination to seeing, speaking and having manual dexterity. In many cases, the decision as to whether a person is disabled or not will be straightforward. However, it is important the above definition is always used.

A child in my school is disabled. What am I obliged to do?

There are two types of obligation. First, the school will be under an obligation to make reasonable adjustments in order to ensure that the disabled person is not put at a substantial disadvantage as compared to non-disabled pupils.

What would constitute a reasonable adjustment?

Reasonableness is one of the hardest legal concepts to define as its application will vary in every individual case. As regards whether or not an adjustment is reasonable, a school can consider:

a) What improvement will the adjustment produce – how much will the adjustment aid a disabled child?b) How easy is it to make the adjustment – how long will it take and what are the consequences?c) What financial costs will be incurred – this could be compared to the total funds available to the schools.d) How much disruption will there be in making the adjustment – will it effect others in a negative way?

e) What resources are available – does the school have specific funding for the adjustment, for instance?

What about the second type of obligation?

In addition to making reasonable adjustments, the school must ensure no disabled pupil is treated less favourably than those who are not disabled unless that treatment can be justified. Less favourable treatment would depend upon the facts of any given case. However, if the school treats the disabled pupil less favourably than another pupil, it does not automatically mean that they have been discriminated against. What is important, is that the “less favourable treatment” must be not be on the grounds of the disability. If it is, a school may have breached the requirements of the law unless that treatment can be justified. A case for justification can be made out by reference to a range of circumstances, including health and safety concerns, a need for substantial extra costs for protecting the rights and freedoms of others.

It is important that schools look to consider the justification element of the test to give them a carte blanche to treat disabled children less favourably due to a difficult situation having presented itself. The powers to justify in less favourable treatment can be hazardous and it will be prudent to pursue with legal advice.

Disability Discrimination Law – things to rely upon, comparisons of treatment between disabled and non-disabled pupils

Determining where the law stands is achieved in many cases through the use of something called “comparators”. A disabled person’s treatment has to be compared to that directed to his comparator. This is particularly relevant in respect of the schools’ use of disciplinary sanctions. As a result of the recent House of Lords case of Lewisham v Malcolm (26 June 2008), in establishing whether a decision to permanently exclude a pupil constitutes an act of disability discrimination, a comparison has to be made between a disabled child who was excluded and a child who is not disabled, but who has behaved in the same way. In other words, if the reason for the exclusion is the pupil’s disability-related behaviour, then it is not necessary to consider whether or not another pupil without that disability who behaved in that way would be excluded. The correct comparison would be will a pupil who is not disabled and has behaved in the same way.

Could you provide me with an example?

Take the example of two pupils, one who has ADHD, being disciplined for throwing stones. Prior to the Lewisham case, there would not have been a requirement to look at how the non-disabled boy was treated. Instead, the focus would have been on whether the stone-throwing was related to the boy’s ADHD. Post Lewisham, if both boys were equally disciplined, no discrimination by reason of less favourable treatment would arise.

What areas of school life do the disability discrimination obligations cover?

The law covers all activities and facilities provided to pupils. This includes the provision of teaching, examinations, learning resources, catering facilities, access to buildings and leisure facilities. It is also important to note that it covers both admission and exclusion of pupils, not merely those pupils who are currently on the school roll – such is the pervasive influence of the legislation.

This e-bulletin issue was first published in November 2008

About the author: Mark Blois