This month’s professional update summarises the requirements of the Disability Equality Duty (DED) for the public sector and outlines the steps that schools, colleges and local authorities will need to take to ensure that they comply with new legislative requirements
The Disability Equality Duty (DED)
The Disability Discrimination Act (DDA) 1995 has been amended by the Disability Discrimination Act 2005 to place a duty on all public sector authorities, including local authorities, schools, colleges and universities, to promote disability equality. The DED will require the public sector actively to promote disability equality(1), and is positive in that it aims to bring about a shift from a legal framework that relies on individual disabled people complaining about discrimination to one in which the public sector becomes a proactive agent of change.
The General Duty
The Act sets out a General Duty, which requires that public bodies have due regard to the need to eliminate unlawful discrimination and promote equal opportunities for disabled people. They will also need to consider the elimination of harassment of disabled people, promotion of positive attitudes and the need to encourage the participation of disabled people in public life. Clearly, this General Duty has implications for the educational sector and the way that local authorities, schools, colleges and universities set about equalising opportunities for disabled pupils, students, staff and parents.
The Specific Duty
The regulations will also give key public authorities a Specific Duty, which will define for them a framework used to meet the General Duty. The main element of this will be the requirement to produce a Disability Equality Scheme. Guidance on the development of an effective Disability Equality Scheme, using a staged process, is outlined in the Disability Rights Committee (DRC) publication Doing the Duty: An overview of the Disability Equality Duty for the public sector (www.dotheduty.org). The process of producing a Disability Equality Scheme must:
- involve disabled people in producing the scheme and developing an action plan
- identify how they will gather and analyse evidence to inform their actions and track progress
- set out how they will assess the impact of their existing and proposed activities on disabled people
- produce an action plan for the next three years.
Schemes produced by educational bodies (eg schools) will also need to give particular consideration to the effect of their policies and practices on the education opportunities and achievements of disabled learners. A summary of key components in developing and implementing a Disability Equality Scheme is presented in the panel opposite.
The duty applies in England, Scotland and Wales. The duty in England and Wales is in all key respects the same as the duty that applies in Scotland, except there are different arrangements in relation to education due to differences in other legislation. More detailed guidance on implementing the DED is outlined in the DRC Code of Practice on the Disability Equality Duty (England and Wales) and the DRC Code of Practice on the Equality Duty (Scotland).(2)
The Disability Rights Commission is also producing a number of non-statutory guidance documents to support the implementation of the DED and the DfES (England) is looking to distribute this as an additional section to the resources linked to accessibility planning and reasonable adjustments (Implementing the Disability Discrimination Act in schools and early years settings) in the autumn of 2006.
Implementation
The general duty comes into force on 4 December 2006 and all public authorities should be prepared by then. Most public authorities subject to the specific duties must publish their Disability Equality Schemes by 4 December 2006. However, primary and special schools in England have until 4 December 2007 to publish their Disability Equality Schemes and all schools in Wales must publish their schemes by 1 April 2007.
Impact of the Disability Equality Duty
The new DED (general and specific) is likely to give added momentum to the development of disability rights that are mainstreamed within policy and strategy at local authority and organisation (eg school) levels in England, Scotland and Wales. It will be interesting to see whether schools and colleges will anticipate the requirements of new legislation due to come into effect from December 2006. Many schools did not comply with the timescale requirements following the implementation of the Special Educational Needs and Disability Act 200.(3)
The new duties are designed to challenge patterns of institutional discrimination against disabled pupils and students, and to ensure participation in the development, implementation and evaluation of Disability Equality Schemes. Arguably, too, the general and specific duties will give further impetus to the provision of inclusive (mainstream) education. However, this may create tensions with other major policy developments in education, most notably proposals outlined in the Schools white paper published in 2005. These tensions are ‘anticipated’ in recently published research by MacBeath et al (2006).(4)
Collaboration and support
The capacity of schools and colleges to implement the DED without a framework of support and guidance may prove to be challenging. Schools, particularly small schools, for example, may find it difficult to respond effectively to the requirement to produce compliant Disability Equality Schemes, and may feel overwhelmed by its demands. This may indicate a need for external monitoring and support provided by related key public bodies (eg local authorities) of a kind that helps schools to develop effective Disability Equality Schemes that enable them to demonstrate that they have taken the actions they have committed themselves to, and achieved appropriate outcomes.
The DRC will provide further information about the implementation of the DED and Disability Equality Schemes. It will also play a key role in enforcing the duty via a judicial review (general duty) or through the issuing of its own compliance notices (specific duties). Progress on the implementation of the DED and the impact of Disability Equality Schemes will also be reported on every three years by relevant secretaries of state. The first of these reports will be published in December 2008.
Schools and colleges may find it helpful to keep up with information and practical advice about the application of the DED to educational context by visiting www.dotheduty.org on the DRC’s website. Many local authorities are also running training courses for educational professionals on how to prepare for and implement the DED.
Notes
- The requirement of the duty to promote disability equality is similar to the duty to promote race equality under the Race Relations (Amendment) Act
- These documents can be downloaded from the DRC’s website (Law section) at www.drc-gb.org
- Requirements here refer to the Disability Discrimination Act and its application to education. This ‘non-compliance’ is noted in Special Educational Needs and Disability: Towards inclusive schools (Ofsted, 2004). Ref. HMI 2276
- MacBeath, J, Galton, M, Steward, S, MacBeath, A and Page, C (2006) The Costs of Inclusion: A study of inclusion policy and practice in English primary, secondary and special schools. University of Cambridge