A useful update on the current law regarding discrimination is provided by Patti Turner

The law requires everyone providing early years services not to discriminate against those with disabilities. Current relevant legislation includes the Disability Discrimination Act 1995; the Special Educational Needs and Disability Act 2001; and the Disability Discrimination Act 2005 (which amends and strengthens the 1995 Act).

We are all clear that discriminating against the disabled is unlawful and morally repugnant; what we may not be clear about is what in law constitutes discrimination and disability. The 1995 act defines them as follows:

Disability: ‘A physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.’

Under this definition around 7% of all children are disabled. This definition which has been extended by the 2005 act covers a wide range of impairments and conditions including: those affecting mobility, sight and hearing; learning difficulties; mental health problems; epilepsy, asthma, diabetes, HIV and cancer; autism; speech and language impairment. If the condition or impairment affects a child’s ability to carry out normal activities in any but a minor way and for a period of a year or more then it is classed as a disability.

Discrimination: There are two core duties applying to all early years settings: not to treat a disabled child ‘less favourably’; and to make ‘reasonable adjustments’ for disabled children. A setting is deemed to be unlawfully discriminating if it fails in these duties.

Impact of the Disability Discrimination Act 2005

For those settings already working effectively within the DDA 1995 and SENDA 2001, the changes required by the 2005 act are not onerous, but are part of a continuum of improving outcomes for children with disabilities. Although there are no new rights for those with disabilities, the act introduces a general duty to promote disability equality within public sector bodies and education providers. If your setting is designated as a school or is attached to a school, this general duty applies to you. By December 2007 you will need to produce and publish a disability equality scheme showing how you aim to meet this duty. There is a particular format for this scheme and plenty of advice is available. Your local education authority will be able to help you and there is a guidance document on disability equality duty available from www.teachernet.gov.uk/wholeschool/sen/disabilityandthedda.

The 2005 Act will have an impact on other early years settings, particularly those that are in receipt of public funding. All public authorities are required to produce a disability equality scheme. This includes local government, hospitals, colleges and universities and many more. Whether or not you will need to produce your own scheme will depend very much on your status, how you are funded and your local authority’s priorities, particularly if these include improving access to care and education for children with disabilities.

Whether or not you are required to produce your own scheme, an awareness of the current approach will equip you to ensure equality for disabled people and to respond to changes brought about by any local schemes that affect you.

The approach aims to promote equality of opportunity, eliminate discrimination and harassment, promote positive attitudes and encourage participation through being:

  • Proactive: Rather than responding to individual cases, organisations must plan in advance how they will incorporate disability equality considerations.
  • Explicit: Organisations must demonstrate what they have done and what they plan to do to improve opportunities and outcomes for the disabled.
  • Involving: Disabled people need to be involved from the very start and their involvement needs to inform actions.
  • Comprehensive: The approach includes disabled employees as well as disabled service users such as children and their parents.

The Disability Discrimination Act 2005 has placed the needs and rights of those with disabilities high on the agenda for change. It would seem that by taking a proactive approach now to providing equality of opportunity for disabled children within your setting you will be putting yourself in a strong position from which to respond to any changes demanded from you in the future.

Discrimination: What is meant by ‘less favourably’?

There is no clear-cut definition of what less favourably means as all cases are individual. If you exclude a child from your setting or from an activity because of their disability without considering how you might include them you would be treating them less favourably. For example, if a child suffers from a condition that means they are late achieving continence and you refuse them a place because it is your policy not to accept children unless they are toilet trained, then you are probably guilty of discrimination. Similarly if you exclude a child with mobility problems from an outing because they would not be able to keep up, you are probably discriminating.

In both these cases you should consider making reasonable adjustments so that the children can be included.

What are ‘reasonable adjustments’?

Reasonableness takes into account costs and available resources, health and safety and the interests of other children. Although in theory you may legally be responsible for making major adjustments to the fabric of your premises, in practice it is unlikely that you will need to. The test of reasonableness applies. You cannot provide what you do not have the funds or resources for. However, you should plan ahead and show how you will make these adjustments in the future as circumstances allow. You should also take advantage of the support and resources offered by relevant statutory, voluntary and charitable organisations.

There are many reasonable adjustments that you can make to improve accessibility for disabled children. These include:

  • changes to policies and procedures
  • adaptations to the physical environment (eg doorways, lighting, sound proofing)
  • levels of support for individual children
  • type and use of resources, including ICT
  • consultation with parents and outside agencies, statutory, voluntary and charitable
  • staff training
  • changes to children’s routines.

For more information see Early Years and the Disability Discrimination Act 1995 published by the National Children’s Bureau. This gives clear information on your responsibilities and looks at a number of relevant scenarios.

An experienced SENCO, Patti Turner now runs CCTraining Consultants Ltd