Susie Roome discusses your responsibilities and obligations towards disabled pupils, and how recent case law may assist in successfully defending these challenges

The law relating to disability discrimination is complex, and an increasing number of schools are finding themselves subject to legal challenge on the grounds of disability discrimination. Susie Roome discusses your responsibilities and obligations towards disabled pupils, and how recent case law may assist in successfully defending these challenges.

What disability equality law applies to the education sector?

The Disability Discrimination Act (DDA) was introduced in 1995, but only directly applied to the education sector from 2002, with the implementation of the Special Education Needs and Disability Act 2001. A new requirement in the form of the Disability Equality Duty (DED) came into force in December 2006. The DED places a positive duty on all schools to promote equality of opportunity for disabled pupils – not simply pupils already at your school, but also prospective students.

What are the practical implications of the DED for my school?

There are two types of duty for you to consider: general and specific. Your general duties are broad and include the promotion of equality of opportunity for disabled pupils; the elimination of unlawful discrimination and harassment; and the promotion of positive attitudes towards disabled pupils in your school. Schools must think carefully about how these duties can be met; for instance, can your disabled pupils access school trips, sports facilities and after-school clubs in the same way as your non-disabled pupils? Are bullying policies up-to-date, and can your staff and pupils recognise and address bullying on the grounds of disability? Disabled pupils should be represented at all levels of the school, and your curriculum and lesson plans should aim to promote positive attitudes towards the disabled.

If a school does not meet its general duties, then it can be challenged by judicial review. It is important that legal advice is obtained if judicial review is threatened; a response to a claim must be made within a short timescale, and costs can escalate rapidly.

What are the specific duties that apply to a school?

A number of specific duties apply. These are essentially a framework for complying with the school’s general duties, and evaluating success. The key document is the Disability Equality Scheme, which is a statutory requirement. This should be a statement of the school’s approach to equality, and must include a three-year action plan setting out the steps to be taken to implement the general duties.
Individuals do not have the power of enforcement in relation to specific duties. That responsibility lies with the Equality and Human Rights Commission.

So has the DED changed my legal obligations to disabled pupils?

The short answer is no. The DED places a new positive duty on schools, but the underlying legal obligations set down in the DDA remain the same: disability discrimination in schools is unlawful. A school has two key obligations – to make reasonable adjustments so that a disabled child is not put at a substantial disadvantage, and to ensure that no disabled pupil is treated less favourably.

How do I assess whether I am treating a disabled pupil less favourably?

This is a good question; a comparator is required. In June 2008 the House of Lords provided comment on the appropriate comparator in Lewisham v Malcolm (‘Malcolm’). Malcolm was schizophrenic who sublet his local authority house, leading the local authority to repossess it. He said that repossession amounted to disability discrimination, and sued on the basis that he had been the victim of less favourable treatment. The House of Lords held that the proper comparator was someone who did not suffer from that person’s disability but who had behaved in the same way as the person concerned.

Lewisham could show that if a tenant without schizophrenia had sublet his house in the same way as Malcolm, he too would have had the house repossessed and there was therefore no discrimination.

How does this apply to education law?

The case of Malcolm was applied to education by the Court of Appeal in February 2009, in R v Independent Appeal Panel Barking and Dagenham. R was a 13-year-old girl with ADHD. Her behaviour at school was very poor, including swearing at staff, threatening violence and barricading herself into a classroom. The headteacher had invested considerable time and funds in identifying strategies to help R manage her behaviour, but ultimately she was permanently excluded. Her mother appealed against the exclusion, arguing unlawful discrimination. The court applied the comparator identified in Malcolm – a pupil who did not have ADHD, but had behaved in the same way as R. It was held that the school would also have excluded that pupil, therefore there was no discrimination.

What are the implications of Malcolm?

The implications are considerable. The fact that the comparator needs to be someone who has shown the same conduct as the claimant will make it difficult to argue that a disabled pupil had been treated less favourably than any other pupil in matters of discipline. The House of Lords admitted to some misgivings in defining the test as they did, recognising that the reach of disability discrimination law would be reduced.

So does the disabled pupil retain some legal protection from discrimination?

Yes. Schools remain under a legal obligation to make reasonable adjustments to provide for disabled children who may otherwise be substantially disadvantaged. In the case of R, prior to her exclusion the school had provided the girl with a personal tutor, key worker and anger management classes, and her statement had been updated. The school was also therefore able to defend this aspect of the allegations of disability discrimination, and as a result the claim failed. Furthermore, schools should note that the affect of the Malcolm decision will be overturned if the Equality Bill is implemented in its current form.

This e-bulletin issue was first published in July 2009

About the author: Susie Roome