Disability Discrimination

It can be difficult to understand or remember all the legal words used in education and about discrimination. Come back to this section if you come across something you do not understand.

What does it mean?

The Disability Discrimination Act (1995) covers unlawful discrimination linked to a person’s disability. At first it did not apply to education. The Special Educational Needs and Disability Act 2001 amended the Disability Discrimination Act to include education.

A key principle of the Disability Discrimination Act is that, wherever possible, disabled people should have the same opportunities as non-disabled people in their access to education.

Part 4 of the Disability Discrimination Act covers disability discrimination in schools. It applies to existing pupils and those who may be pupils at a school in the future. In this guide we use pupil to cover existing and future pupils at state schools.

Code of Practice for Schools the Disability Discrimination Act 1995: Part 4. In this booklet we call this the Code of Practice. It explains Part 4 of the Disability Discrimination Act and can be referred to in legal proceedings. It came into operation in September 2002.  Copies are available from the Disability Rights Commission on 08457 622 633.

In this guide, we use must when the law says something has to happen and should when the Code of Practice says that something should happen.

A disabled child has a physical or mental difficulty which substantially and harmfully affects their day-to-day activities.

A child has learning difficulties if they find it significantly harder to learn than children of the same age or if they have a disability which makes it difficult for them to use educational facilities available in their area.

If a child with learning difficulties needs extra help at school, they have special educational needs. Many, but not all, disabled pupils have special educational needs. Some, but not all, pupils with special educational needs are also disabled. In this guide we only cover disability discrimination. For advice on special educational needs, see the more information section at the end.

I think my disabled child is being treated unfairly, what can I do?

It is best to try to talk to the school as soon as possible. If you feel you cannot discuss the problem with your child’s teacher or year tutor, go to someone higher in the school. Usually this will be enough to put things right.

If the school does not sort things out, this booklet will help you decide whether or not the school might be unlawfully discriminating against your child. It cannot tell you for sure. Different people can come to very different conclusions about the same case.

If you decide that it may be unlawful discrimination, it is generally best to go back to the school first. If the problem continues you could make a claim of unlawful discrimination.  Claims are decided on  by  the  Special Educational  Needs  and  Disability  Tribunal  (SENDIST),  the  admission appeals panels and exclusion appeals panels.

ACE advises:

Work your way slowly and carefully through the booklet. You will not need to understand the whole of disability discrimination law, just write down the answers to all the questions as best you can. This will help you decide if you think your school might be discriminating unlawfully. Of course any final decision would lie with SENDIST or the appeals panels.

Step 1: What does the law say?

Unlawful discrimination takes  place  if  a  school  discriminates,  without justification, against disabled pupils or prospective pupils, in any part of school life.

There are two different forms of unlawful disability discrimination.

Unlawful discrimination may be taking place when a disabled pupil:

• Is treated less favourably by a school and/or
• Is put at substantial disadvantage by a school

Sometimes the easiest way to understand this is to look at it this way:

Unlawful discrimination may be taking place when:

• A school treats a disabled pupil differently from other pupils and this has a harmful effect and/or
• A school treats a disabled pupil in exactly the same way as other pupils and this has a harmful effect.

To decide whether or not the school may be unlawfully discriminating against your child follow Steps 2 – 9.

Even if you decide there is no unlawful discrimination your child’s problems may arise from special educational needs which are not being met. (For advice on special educational needs, see the more information section at the end.)

Step 2: Check if your child is a disabled person.

It is first necessary to check if your child would be classified as a disabled person under the Disability Discrimination Act. The Act says a disabled person is someone who has a physical or mental impairment (difficulty) which has an substantial, long-term and harmful effect on their ability to carry out normal day-to-day activities.

Your answers to the following questions will help you decide if your child may be classified as being disabled.

Question 1: Does your child have a physical or mental difficulty?

• No – the Disability Discrimination Act does not apply to your child.
• I do not know - the Code of Practice paragraphs 4.3 – 4.7 & Appendix 1 can help you decide. See below.
• Yes – go to to Question 2.

Paragraph 4.3 says that hidden impairments  such as  mental  health problems, dyslexia, diabetes or epilepsy may be disabilities. Difficulties that are not covered include addiction to alcohol or drugs, broken limbs, and conditions that are regular but temporary such as hay-fever.

Paragraph 4.6 says that it is unlikely that a child with emotional and behavioural difficulties will be classified disabled unless their behaviour arises from another disability such as mental illness, autism or ADHD. However this may be decided for certain by the courts in the future.

Question 2:  Is the effect of the difficulty more than minor or trivial and likely to last more than 12 months?

• No - the Disability Discrimination Act does not apply to your child.
• Yes - go to question 3.

Question 3:  Is your child’s difficulty helped by medical or other treatment?

• No - Go to question 4.
• Yes - Ignore any improvements that come from the treatment when you answer question 4. Judge your child’s ability to do day-to-day activities on how they manage without treatment.  The only exception is if your child wears glasses or contact lenses, in these cases your child’s ability to carry out day-to-day activities is judged on how they manage with the lenses or glasses. Go to question 4.

Question 4:  Does the difficulty affect your child’s ability to do normal day-to-day activities which most people carry out fairly regularly and frequently?

• No - the Disability Discrimination Act does not apply to your child.
• I do not know - Are any of the following affected: memory or ability to concentrate, learn or understand; walking; using their hands; physical co-ordination; continence; ability to lift, carry or move everyday things; speech; hearing or eyesight; seeing and understanding the risk of physical danger?  If so the answer to Question 4 is Yes.
• Yes - your child may be classified as being disabled under the Disability Discrimination Act.

The next steps will help you decide whether you think that the school is unlawfully discriminating against your child.

Step 3: What activities are covered?

Disability discrimination is unlawful in “education and associated services, admissions and exclusions”.

This covers all parts of school life from teaching through to lunch-time activities, after-school clubs and trips. The Code of Practice paragraph 4.23 gives examples.

Are you concerned that your child:

• Is being treated less favourably or
• Is being put at a substantial disadvantage or
• Is both treated less favourably and put at a substantial disadvantage?

Less favourable treatment - go to Step 4

Put at a disadvantage - go to Step 7

Both - go to Step 4

Step 4: Is the school discriminating by treating your child less favourably?

The law says that if a disabled pupil is treated less favourably than another pupil for a reason linked to their disability this will be unlawful disability discrimination if:

• The reason does not apply to the other pupil and
• The less favourable treatment is not justified.

The school’s justification for less favourable treatment must be material and substantial.

This sounds rather complicated but generally it means unless there is good justification, the school must not treat your child less well than a child who is not disabled.

Work your way through these questions to help you decide if your child is being treated less favourably for a reason linked to their disability.

Question 1: What is the reason for treating your child differently?

The reason is the school’s explanation for treating your child differently. For example if they say that your son cannot go on a trip because of his poor behaviour, then the reason is your child’s poor behaviour. If the school has not given an explanation or if you do not accept their explanation: what do you think is their reason for treating your child differently?

Once you have decided on the reason go to Question 2.

Question 2: Is the reason linked to your child’s disability?

• No - this is not disability discrimination through less favourable treatment.
• Yes - now ask yourself Question 3.

Question 3:Are children that the reason does not apply to treated better?

• No - this is not disability discrimination through less favourable treatment.
• Yes - your child’s treatment is linked to their disability.

Go to Step 5.

Step 5: Can the treatment be justified?

The law says  that if a school can justify treating a disabled pupil less favourably, this is not unlawful discrimination.

ACE advises:

This is an area where different people may come to different conclusions. A school may feel strongly that it is justifiable to treat a particular disabled child less well. The child’s parent may feel this is not justifiable and that their child is facing unlawful discrimination. Of course any final decision lies with SENDIST or the appeals panels.

The Code of Practice says that for less favourable treatment to be  “justified”:

• There  must  be  a  clear  connection  between  the  justification  and  the circumstances of the case and
• The justification must be more than minor or trivial and
• No reasonable steps could be taken by the school to avoid treating the pupil less favourably.

Has the school justified, or do you think it will justify, the treatment?

• No – If a school cannot justify treating a disabled child less favourably, this is unlawful discrimination. Go to Step 9.
• Yes - what is the justification?

Is there a clear connection between the school’s justification of the treatment and your child’s case? Is the school’s justification more than minor or trivial?

• No - If the answer to either question is No the treatment cannot be justified. If a school cannot justify treating a disabled child less favourably, this is unlawful discrimination. However it will still be useful to check to see if there are reasonable steps the school could take to avoid treating your child less favourably. Go to Step 6.
• Yes - If the answers to both these questions are Yes, you now need to check whether there are reasonable steps the school could take to avoid treating your child less favourably. Go to Step 6.

For admissions only: can the treatment be justified in terms of selection?  If the school is selective, refusing a place to a disabled pupil may be justified if  selection  criteria  were  applied  correctly  and  led  to  the refusal.

Step 6: Are there reasonable steps that would avoid the treatment?

If there are reasonable steps (“adjustments”) that a school could take or could have taken to avoid treating a pupil less favourably, the treatment may not be justified. If less favourable treatment is not justified, discrimination is unlawful.

However, if there are no reasonable steps, treating a pupil less favourably may be justified. If less favourable treatment is justified, discrimination is not unlawful.

The Code of Practice says that reasonable steps do not include providing auxiliary aids and services or altering physical features of the school to suit the pupil. These are expected to be provided through special educational needs provision or long term planning.

Are there any steps, not including aids and services or altering the school, that the school could take or could have taken to avoid treating your child less favourably?

• No - the treatment is justified and your child has not been unlawfully discriminated against. Go to Step 7.
• Yes - Now check if these steps are reasonable.

To decide whether a step is reasonable, issues such as ‘cost’, financial and otherwise, are weighed against the treatment of the pupil.  The Code of Practice gives the following list of factors to take into account. Are any of them relevant?

• The need to maintain academic, musical, sporting and other standards
• The financial resources available
• The cost of taking a particular step
• The extent to which it is practicable to take a particular step
• The extent to which aids and services will be provided to disabled pupils a the school as part of special educational needs provision
• Health and safety requirements
• The interests of other pupils and persons who may be admitted to the school as pupils?

 

• No - the less favourable treatment may not be justified. If a school cannot justify treating a disabled child less favourably, this is unlawful discrimination. Go to Step 9.
• Yes - go to the next question.

Does the cost of the step outweigh the treatment of your child?

• No - the less favourable treatment may not be justified. If a school cannot justify treating a disabled child less favourably, this is unlawful discrimination. Go to Step 9.
• I do not know - views of whether the cost of a step outweighs treatment of a pupil, may vary from person to person. You need to decide what you think. Of course any final decision lies with SENDIST or appeals panels.
• Yes – the less favourable treatment is justified and your child has not been unlawfully discriminated against on the grounds of being treated less favourably.

Step 7: Unlawful discrimination through substantial disadvantage.

Unlawful discrimination also arises if a disabled pupil is at substantial disadvantage compared to other pupils because the school has not made “reasonable adjustments” which take into account the pupil’s needs.

This generally means that unlawful disability discrimination occurs if:

• A disabled child is suffering because they are treated in exactly the same way as non-disabled children and
• The suffering would have been avoided if the school had taken certain reasonable steps.

First check whether your child is at a disadvantage. Compared with children who are not disabled:

• Does your child have to spend more time and effort? or
• Is your child inconvenienced?  or
• Does your child suffer indignity or discomfort? or
• Does your child have less opportunity or make less progress?

The Code of Practice says that this list is not exclusive, so your child may still be at a disadvantage if they are facing other difficulties.

If you think that your child is disadvantaged compared with other children, now check: is the disadvantage more than minor or trivial?

• No - your child has not been unlawfully discriminated against on the grounds of substantial disadvantage.
• Yes - check if there were steps the school could take to avoid the disadvantage, go to Step 8.

Step 8: Are there reasonable steps to avoid disadvantage?

This is very similar to Step 6.

If there are reasonable steps (“adjustments”) that a school could take or could have taken, to avoid a pupil being at substantial disadvantage, the disadvantage is not justified. This is unlawful discrimination.

If there are no reasonable steps that a school could take or could have taken, the disadvantage is justified. This is not unlawful discrimination.

The Code of Practice says that reasonable steps do not include providing auxiliary aids and services or altering physical features of the school to suit the pupil. These are expected to be provided through special educational needs provision or long term planning.

Are there any steps, not including aids and services or altering the school, that the school could take or could have taken to avoid your child being at a disadvantage?

• No - your child has not been unlawfully discriminated against on the grounds of substantial disadvantage
• Yes - now check if the steps are reasonable.

To decide whether a step is reasonable, issues such as ‘cost’, financial and otherwise, will be weighed against the disadvantage to your child. The Code of Practice gives the following list of factors to take into account. Are any of them relevant?

• The need to maintain academic, musical, sporting and other standards
• The financial resources available
• The cost of taking a particular step
• The extent to which it is practicable to take a particular step
• The extent to which aids and services will be provided to disabled pupils at the school as part of special educational needs provision
• Health and safety requirements
• The interests of other pupils and persons who may be admitted to the school as pupils?

• No - the substantial disadvantage may not be justified. If a school cannot justify a disabled child being at a substantial disadvantage, this is unlawful discrimination. Go to Step 9.
• Yes - now ask yourself this next question.

Does the cost of the steps outweigh the disadvantage to your child?

• No - the disadvantage may not be justified. If a school cannot justify a disabled child being at a substantial disadvantage, this is unlawful discrimination. Go to Step 9.
• I do not know - views of whether the cost of a step outweighs substantial disadvantage to a child may vary from person to person.  You need to decide what you think. Of course any final decision lies with SENDIST or appeals panels.
• Yes – the disadvantage is justified and your child has not been unlawfully discriminated against on the grounds of substantial disadvantage.

Step 9: Who is responsible?

The duty not to discriminate is the responsibility of “the responsible body”. For schools this is generally the governing body. A claim of discrimination is made against the responsible body not against the head, individual teacher or lunch-time assistant etc. If you are not sure who is responsible check the Code of Practice paragraph 4.16. Anyway, this will be sorted out if you make a claim of unlawful discrimination.

What if the responsible body did not know about or had not anticipated my child’s disability?

It is generally not unlawful discrimination if the school did not know, and could not have been reasonably expected to know, about a disability. However, it may be unlawful discrimination if the school did not actively seek out information about disability or plan ahead.

Step 10: Who do I make my claim to?

The Disability Rights Commission suggests that you complain to the governing body of the school or the local education authority first. If they do not sort the problem out, make your claim to the appropriate body:

• Admission appeals - admission appeals panel
• Admissions issues for statemented pupils - Special Educational Needs and Disability Tribunal (SENDIST)
• Exclusions - exclusion  appeals  panel  for  permanent  exclusions; SENDIST for fixed period exclusions
• All others - SENDIST

There are often time-limits for making a claim. Remedies do not include financial compensation.

Further information:

From the Advisory Centre for Education:

• Special Education Handbook
• Children with Special Needs: sources of help
• Getting Extra Help

Free advice on ACE’s advice line: 0808 8005793.
For children who have been excluded from school: 020 7704 9822.

From other organisations:

Disability Rights Commission - Helpline: 08457 622 633.

SENDIST - 020 7925 6925.

SENDIST has a booklet which includes a claim form. The Disability Rights Commission may be able to offer help and conciliation as well as information and advice.