The new Equality Act will remove the exemption for schools which previously meant that they did not have to provide auxiliary aids and services to students with a disability. Rebecca Taylor-Onion looks at the impact of the new disability duty in relation to auxiliary aids and services on schools

What are schools’ existing disability duties?
Since the SEN and Disability Act (SENDA) 2001, schools have been under a duty not to discriminate against pupils on grounds of disability. This duty has always included the obligation to make reasonable adjustments to moderate poor behaviour of pupils arising from a disability. A school will fail in this duty if, without justification, it does not make reasonable adjustments and this results in a pupil being placed at a substantial disadvantage. To decide whether a proposed adjustment is reasonable, schools can consider how much the adjustment will aid the child, how easy it is to make and how much the adjustment would cost. However, there are often simple ways in which schools can make adjustments. For example, it would be an easy adjustment to ensure that a teacher always addressed the class facing forward to ensure that a pupil with hearing difficulties could lip-read.

Who is currently responsible for providing auxiliary aids and services?
Under the current law contained in SENDA 2001, the duty to make reasonable adjustments for pupils with a disability excludes the provision of auxiliary aids and services which ensure access to the curriculum. Traditionally, auxiliary aids and services have been dealt with under the special education needs (SEN) regime as they involve the provision of extra resources, while in contrast disability duties do not require additional expenditure. SEN obligations fall on LAs, who are responsible for funding a pupil’s statement of SEN, including auxiliary aids and services specified in the statement which will assist the child’s learning. The exemption has therefore served to ensure that schools do not have to provide and pay for additional aids and services.

Why is the auxiliary aids and services exemption being removed?
In his recent report on SEN and parental confidence, Brian Lamb concluded that awareness among parents of the rights and responsibilities contained in disability discrimination legislation is low. Lamb therefore recommended removing the auxiliary aids and services exemption to give parents an additional cause of action in disability law against schools. The Equality Act 2010 is expected to remove the exemption in 2011 and will require schools to take reasonable steps to provide auxiliary aids and services where the LA fails to refuses to specify them in statements.

Can schools ensure that LAs specify auxiliary aids and services in statements?
At present, it is unclear whether schools could compel LAs to specify auxiliary aids and services in statements and pay for them via the SEN regime. Even if LAs include aids and services in statements, schools may potentially have to provide aids and services from what might arguably be inadequate delegated funds for SEN if parents can show it is still reasonable for schools to do so. The government has reportedly delayed implementation of the removal of the exemption to allow the Equality and Human Rights Commission to draw up a code of practice on this issue before the new legislation comes into force in 2011. However, ultimately, case law will be needed to tease out exactly what is expected of schools under the new law.

This e-bulletin issue was first published in May 2010

About the author: Rebecca Taylor-Onion is a lawyer at Browne Jacobson. To find out more about the legal services Browne Jacobson provides in the education sector and to visit their website, please follow this link